Home \ Training \ First Aid Online \ Intro to First Aid \ Legal Issues in First Aid

The information in this chapter is a guide only. It is provided to help first aiders understand the potential legal consequences of becoming involved in an incident. You should seek your own independent legal advice if you have any specific questions about legal issues associated with first aid procedures or become involved in legal action.

There are four main legal considerations relating to first aid:

• Duty of Care
• Negligence
• Consent
• Recording

Duty of care“Duty of care” describes the legal duty owed by one person to another to act in a certain way. As a first aider, you have a duty of care towards your casualties to exercise reasonable care and skill in providing first aid treatment. The duty arises because you have knowledge and skills relevant to a medical emergency situation.

If you choose to provide first aid assistance, you have a duty to use your knowledge and skills in a responsible way.

The common law does not impose an automatic duty on first aiders to go to the aid of every casualty they come across. However, first aiders do have a duty to provide first aid assistance if they have voluntarily taken on that role. For example, a nominated first aid officer in a workplace owes a duty of care to assist another person in that workplace.

Legislation can also impose a duty of care. For instance, legislation in some States says that staff in child care centres must provide medical aid to a child who becomes ill or is injured. Further, in the Northern Territory, the Criminal Code makes it a criminal offence, for a person who is able to do so, to ‘callously fail’ to provide first aid to a person urgently in need and whose life may be endangered. The penalty is up to seven years imprisonment.

Once you start first aid treatment of a casualty you do take on a duty of care to provide first aid with reasonable skill and care and ensure your actions do not increase the risk to the casualty. You should continue to provide first aid once this treatment has begun, until:

• The scene becomes unsafe
• Another trained first aider arrives and takes over
• Qualified help arrives and takes over
• The casualty shows signs of recovery
• You become physically unable to continue

Various Australian States and Territories (excluding Queensland and Tasmania) exclude from liability a person where, in an emergency, they help a person who is, or risks being, injured. Such protection from civil liability for an act or omission exists as long as:

• The person rendering assistance does so in good faith (that is, acting honestly, without fraud, collusion, or participation in any wrongdoing);
• The person’s action was without expectation of reward or payment;
• The person was not responsible for the injury in relation to which the assistance was provided;
• The person’s capacity to exercise reasonable care and skill was not significantly impaired by being under the influence of alcohol or drugs;
• The person exercises reasonable care and skill; and
• The person does not impersonate a health care or emergency services worker or a police officer or otherwise falsely represents that he or she has skills or expertise in connection with the rendering of emergency assistance.

In addition, each Australian jurisdiction has legislation which provides protection for volunteers of charitable, religious, educational and benevolent community organisations. Such volunteers are protected from civil liability for acts or omissions made or done in good faith within the scope of the activities organised by the community organisation.

The protection does not extend to damage caused by the volunteer’s criminal conduct or impairment of the volunteer’s ability by alcohol or drugs.

Negligence In the unlikely event that a first aider is sued in connection with providing first aid assistance, the courts would look at the circumstances surrounding the event to see if the first aider acted negligently in the way the first aid was provided. The following factors must all be present for a first aider to be found negligent:

1. A duty of care existed between the first aider and the casualty;
2. The first aider did not exercise reasonable care and skill in providing the first aid;
3. Breached the relevant standard of care; and
4. The casualty sustained damage as a result of an act or omission of the first aider.

A first aider is not considered a ‘professional’ in most cases. A court would look at the first aider’s training and at what a prudent and reasonable person would have done with the same level of training in the same circumstances.

Because encouraging people to assist others is in the public interest, it is likely that the Australian courts would only see first aiders as liable if it can be shown that their behaviour was grossly negligent and would take account of all the circumstances of the event.

The court may examine issues to establish whether the first aider exercised reasonable care, such as:

• What was the first aider’s level of knowledge?
• What information was available for the first aider, including:
  • was adequate questioning used?
  • was a thorough examination of the casualty undertaken?
  • were all the facts available taken into account?
• Were accepted first aid procedures complied with?
• What were the circumstances in which the first aider provided assistance?

Example:
A first aider gives CPR to a casualty in cardiac arrest. During this CPR a rib is broken. The resuscitation is successful and after the event the casualty decides to sue for the rib injury.
The court would look at the facts and may decide that:

• It is reasonable to expect that a first aider might break a casualty’s rib while delivering CPR to save the casualty’s life; and
• The first aider acted with reasonable care and skill; and
• The first aider was not negligent in providing CPR in this way; and
• The outcome for the casualty of not performing CPR could have been far worse than suffering a broken rib.

Consent Before you start treating a casualty you should ask for and receive the casualty’s consent to your treatment. If the casualty is unconscious, or is unable to give consent due to their injuries, you can assume consent and start treatment. If the casualty is under 18 years old, then you should seek consent from a parent or guardian. If a parent or guardian is not present, you can start treatment.

You should not start treatment if an adult, who seems of sound mind and able to make a decision, refuses your offer of treatment.

You only have the casualty’s consent to treat them for a condition that affects their immediate health. You should not provide help for any ailment that goes beyond your knowledge of first aid.

Recording First aiders should always make notes or fill out a casualty report on any event attended, no matter how minor. Proper records will help you to recall the incident if you are ever asked about it at a later stage.

The responsibility is greater if you have a role as a first aider in your workplace, and you may have reporting obligations under your State or Territory occupational health and safety (OH&S) legislation. You can check this with your workplace OH&S representative.

Records may be used in a court, so ensure that your reports or notes are legible, accurate, factual, contain all relevant information, and are based on observations rather than opinions.

When preparing a report some general guidelines should be followed:

• Use ink only.
• Any corrections should be crossed out with a single line and initialled. Do not use correction fluid to correct any mistakes.
• Sign and date the record.
• The information should be kept confidential, and should only be accessed by authorised people. Who is authorised to access the records varies in different State or Territories.
• In a workplace incident, a copy should go to authorised employer representatives for auditing and OH&S monitoring purposes.

Documenting your treatment The accurate recording of injury/illness is also of great assistance to any medical personnel who take over your casualty’s treatment, such as ambulance officers. The format that is used to report injury and illness varies from workplace to workplace, and from State to State due to different policy requirements or legislation.

The information which should be contained in an injury/illness report is:

• The date and time of incident
• Brief personal details (name, address, date of birth)
• History of the illness/injury
• Observations (signs, symptoms and vital signs)
• The first aider’s assessment of the injury/illness
• Date
• Signature of first aider
• The date of report
• Print name and title of first aider

Copies of reports should be given to:

• The person taking over care
• The casualty

The first aider keeps a copy as a record which is to be kept secure.

The confidentiality of all records must be maintained

A copy of the report should be sent with the casualty to the hospital or medical facility.

A sample injury/illness report form on the previous page shows the essential amount of information required.