more_vert
THE issue of whether doctors are legally obliged to provide “Good Samaritan” assistance in a medical emergency always attracts considerable interest when we write about it. A recent article on doctorportal discussing this question stated that the question of legal duty is complex and that the legal situation in Australia is ambiguous. It quoted an article I had written saying that there is no general common law duty and suggested this advice was contradicted by the 1996 NSW case of Lowns v Woods. We maintain that there is no general common law duty and explain our reasoning below.
It is true that the issue is complex. The interplay between common law (based on judges’ decisions), differing legislation in the various Australian states and territories, and doctors’ professional ethical obligations about providing assistance in emergencies does cause confusion.
What have the courts said?
The defining features of a Good Samaritan are that they are involved in an emergency situation and they have no expectation of payment. There is very little case law considering this issue as it rarely comes before the courts, but when the question was considered by the Western Australian Court of Appeal in 2014, the court held that at that time there was no evidence of a specific professional duty on a medical practitioner to attend and provide medical assistance to a person who is not a patient in the circumstances of an accident.
That case related to a near-miss accident on a road in the north of WA in 2002. In that case a doctor had been found guilty of improper professional conduct under the legislation at the time, for failing to stop to assist. It was dark at the time, she had narrowly managed to avoid the accident and was considerably shocked, she did not have a torch, medical equipment or a mobile phone with her. She drove to the nearest police station to report the accident.
Initially, the State Administrative Tribunal had accepted that Dr Dekker owed a duty at the time of the accident to stop and provide medical assistance. This decision was overturned on appeal.
Referring to the case of Lowns v Woods, the WA Court of Appeal indicated that it was the particular circumstances of that case that gave rise to a duty of care in that case. In particular, Dr Lowns was at his medical practice at the time; the patient (a child having an epileptic seizure) was about 300 metres from the medical practice; the court accepted that the doctor had been informed a life-threatening medical emergency was occurring and he had the ability to provide treatment. Further, the NSW legislation at the time specifically stated that a refusal to attend without reasonable cause, when requested to do so, would constitute professional misconduct.
Is there any legislation that applies?
While there is no general common law duty, NSW and the Northern Territory have specific legislation that applies to assistance in emergencies.
The NT Criminal Code (section 155) makes it a criminal offence to “callously” fail to provide rescue, resuscitation, medical treatment, first aid or succour to a person urgently in need and whose life may be endangered if it is not provided.
Doctors practising in NSW need to be aware that the Health Practitioner National Law in New South Wales (s 139C) provides that a doctor may be guilty of unsatisfactory professional conduct if they refuse or fail, without reasonable cause, to attend a person in need of urgent medical assistance within a reasonable time after being requested to do so, unless they have taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.
What about ethical obligations?
As noted in the doctorportal article, doctors are also bound by their ethical obligations, which are contained in Good medical practice: a code of conduct for doctors in Australia (clause 2.5).
Based on the code, a doctor may be criticised for failing to assist where they were capable of assisting and simply preferred not to get involved. However, while medical practitioners are encouraged to offer assistance in emergency situations, the code makes it clear that any offer of assistance should take into account:
- the doctor’s own safety;
- their skills;
- the availability of other options; and
- the impact on any other patients in their care.
Importantly, once a practitioner has begun to provide assistance, they should continue doing so until their services are no longer required.
Morag Smith is a senior solicitor with Avant Law.
To find a doctor, or a job, to use GP Desktop and Doctors Health, book and track your CPD, and buy textbooks and guidelines, visit doctorportal.
Loading ...
I agree with comment 16. Threat of prosecution if professional services are not rendered is unethical in itself and hence hypocritical. There is no other profession which coerces its members to render services to those in need. Whether you choose to help in an emergency or not should be a personal decision. There may be many reasons whereby a doctor may not feel comfortable in getting involved in a situation and you should not be made to feel guilty or legally coerced into doing something you do not feel comfortable with.
@Michael Eburn Sorry I forgot to mention that incident involving person injured during fire-walk happened in India. The doctor could be an Australian and received legal notice when back in Australia but I could not confident say so.
@Michael Eburn I recall reading a case where a doctor who assisted a person injured possibly due fire-walk and was subsequently sued. I am not sure what is the possibility of being sued if something goes wrong and a claim made against a doctor’s Good Samaritan undertaking on the ground that he or she is not competent or acting outside his professional expertise, for example, a GP be accused of lack of professional expertise because he or she is not an emergency specialist. Is the law is such that a doctor provide Good Samaritan assistance CAN NEVER be sued? I would like to hear from some of the medico-legal experts.
I was shocked by the Leila Dekker case and relieved that the tribunal ruling was overturned on appeal. The tribunal judgement was insisting that doctors put their lives at risk to render assistance, even when the circumstances were such that it was impractical and would have delayed the arrival of equipped emergency services. I remember reading that the judge on the tribunal state that Dr Dekker would have met her obligations if she had driven up the embankment and used her headlights to survey the scene. Would not the headlights have lit up the sky at that angle or did the judge expect her to drive over the top of the embankment? I posted on a forum asking if the judge would expect his wife to render assistance under similar circumstances and my post was removed. I thought it was a pertinent question. After that, I started telling unaccompanied young children in the surf (whilst their negligent parents were far away on the beach) they would have to get out. I was very nice and they did get out. I didn’t want to be responsible for trying to resuscitate a child. I have a personal rule that if I ever again see a child unsupervised at a pool or at the beach I will call the police and report child endangerment.
At any one time there are more than 20000 Australians in Bali. 88 were killed in 2002 and hundreds injured. There was no doubt – watching bystanders heroically risking their lives to drag flayed bodies from the furnace- that as I doctor I had the most melancholy duty to serve humanity regardless of the risk to my own life. I would have rather ran into the flames and dragged bodies out but had to accept that my training and experience meant that I had to stay alive and work. That first night I was put in charge by the Balinese doctors of the whole ward of 50 people with more than 50 percent burns. I worked all night until relieved by another GP. I ended up homeless and on welfare , excluded from training- ineligible for work cover, denied life insurance and income protection insurance . Both state governments promised an ex gratia payment in the media to help me care for my family when I was unable to work- then after I had reduced my hours of work – in anticipation of this relief they reneged- AMA refused to help as my membership had expired in 2003- ( when I became unable to work) – then when it hit the media in 2010 the AMA legal adviser recommended I sue my employer nsw health…. wow. Holding a young woman in my arms- with her guts hanging out – surrounded by strangers- looking her in the eyes and telling her – I am sorry there is nothing I can do for you- I’m so sorry – standing up walking away- telling all the strangers around her to hold her comfort her and not let her die alone… what else would you do?
I believe that we all have obligations to assist just as a lay person has an obligation to assist other persons in trouble. I am only a paediatrician but i have had to directly resuscitate adult people in cardiac arrest, having seizures, pseudoseizures, myocardial infactions, serious motor vehicle accident and numerous other adult conditions for which i had only distant expertise. Usually one can provide considerable assistance and ultimately obtain help from ones colleagues either directly or by phone. I have never encountered any concerns about legal issues after such events. If there was a legal concern i feel confident in my legal support and the common sense of the general community.
I think that female doctors might feel very threatened by the possibility of violent responses to their assistance and would support their reluctance to be involved. The first rule of first aid is not to put ones own safety at risk in resuscitation and rescue.
The issue of rendering assistance on a plane which may be out of ones level of expertise is bad enough but what do we all do on a plane….have a few wines….this puts in an invidious position if i had a few drinks i would have to decline assistance in anything that was remotely serious and the irony is that if it is not serious no help is needed
do i want to be prosecuted for rendering assistance under the influence of alcohol and lets face it as soon as we take our seat in business class we get champagne and then wine with the meals
is there good Samaritan protection in international air space or over a country where I am not registered?
this is slavery. why should anyone b coerced under threat of jail or criminal prosecution to render professional services?
why not coerce supermarkets to feed homeless?
I am a consultant cardiologist.So far ,on planes,I have treated a chest pain, a fractured humerus that fell out of a sling and had not had any other treatment before getting on to the plane, a small? haematemesis,and a whole family who developed nausea and vomiting after leaving Sydney on their first flight overseas.
only one sounds slightly cardiac but I am a doctor ant my job is to treat people as best I can.
Forget about legal nonsense and remember you are a doctor first.
“Doctors practising in NSW need to be aware that the Health Practitioner National Law in New South Wales (s 139C) provides that a doctor may be guilty of unsatisfactory professional conduct if they refuse or fail, without reasonable cause, to attend a person in need of urgent medical assistance within a reasonable time after being requested to do so, unless they have taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.”
https://www.legislation.nsw.gov.au/inforce/5f7cecec-66d4-c01e-92b1-f8efa02f105c/2009-86a.pdf
Correct me if I am wrong:
This is specific to doctors working in NSW; notice that the standard is that if you are called upon to assist as a doctor, if you intend to refuse or decline you got to ensure ANOTHER DOCTOR (not just any health professional) can replace you to attend to the person within a reasonable time period.
So deciding to call for ambulance doesn’t absolve doctors of their responsibility to attend (as a doctor) since ambulances are staffed by paramedics (not doctors) .
Neither does the law care about what emergency skills you have since that does not appear to be a consideration in the legislation; you can be a CEO of a IT company or a private psychiatrist or a income insurance chief medical officer who do not have direct patient contact but as long as you have current registration with AHPRA as a medical practitioner you have obligation under this legislation.
The interesting part is that how does the NSW legislation considers as doctors working in NSW:
Work address as registered in AHPRA
Home address as registered in AHPRA
Any doctor in NSW when identified and called upon as a doctor (eg tourist)
Any ideas?
I agree that any life and death emergencies should be attended by a doctor, nurse or any other para medic,when ever necessary.
I helped to save a child in a long haul flight ,This child had severe allergic reaction ( anaphylaxis).
Qantas had distant medical cover which was helpful but I had to use my own judgement and make decisions on this 11 years old child.
There should be some sort of legislation to protect the practitioner in this situation in case if any thing goes wrong.
Just a note :Qantas offered me few frequent flyer points, and chose me 3 times for random security checks on Sydney to NYC flights and made my life miserable!!
It would be difficult for a doctor to refuse a direct request for assistance, or to justify this later. Also being the only person on the scene to help.
However the situations are not always clear cut.
i would ask myself ; Am I going to put myself in danger? ( the memory of a doctor acquaintance who stopped to help at a road accident and was himself run over and killed has always stayed with me )
How critical is the situation? Is the patient receiving adequate care eg from paramedics? Am I competent to assist in this case or are there others better equipped ?
On an aeroplane, eg, have I had a few wines or a sleeping tablet which is going to impair my judgement or abilities ?
Am I just going to render first aid with many others competent to do the same?
The judgement call has to be made at the time. The approach– ” I am a doctor can I be of assistance? ” is best if in doubt.
One are of confusion might be the definition of an “emergency”. The rationale for behaviour at an accident scene, where there is danger and possibly multiple causalties, is very different to responding to a single sick person. At a multi-vehicle accident scene, the priority may be to ensure one’s own safety and summon emergency services rather than render individual aid.
The Leila Dekker case that went on for 12 years was an example of the Law at its worst. There are some parts of Australia where doctors are warned not to stop at an accident scene because of a high likelihood of being attacked by drunken, drugged and violent people. Dr Dekker did all the right things and still got prosecuted. Her case took 12 years to resolve. The legal maxim is : Justice delayed is justice denied.
I always provide assistance. Qantas even thanked with 2 years of upgrades. Didn’t tell me-it just happened. On the two occasions that I actually saved a life there was no thanks but much self satisfaction.. On the other dozen less critical occasions, much thanks.
Some airlines now have ‘distant’ medical cover via radio contact with the Captain. I have had an occasion where I assisted at an inflight emergency, and had a very different opinion from the ‘distant’ doctor who has also been contacted. I was refused discussion with the distant doctor and my opinion was disregarded. The passenger was okay in the end but this is a potential recipe for governance and clinical disaster, where clinician to clinician communication is actively refused, and the doctor present has to sit helpless watching treatment be given that they believe will be detrimental. The airline Captain and doctor hold responsibility, but the onward doctor is in an invidious position- much like an RMO again!
I’ve worked in a specialist area completely divorced from resuscitation and emergency situations for over 40 years and I believe my skills in an emergency situation are now marginal. I am concerned about laws that may punish for not getting involved but may also punish me if I do and perform at a level not up to the standard of a current GP.
An ex doctor will be under no duty to assist. And whether a current or formerly registered medical practitioner, all can rely on ‘good Samaritan’ legislation that now applies in all Australian states and territories (see https://emergencylaw.wordpress.com/2017/02/22/good-samaritan-legislation-a-comparison/). And despite the fears and concerns, there are no reported cases of anyone, doctor or otherwise, being sued over their attempts to help a person in an emergency that occurs outside their place of practice.
I have been a medical practitioner for 50 years. worked in casualties for about eight years .25 years in Australia. I was flying from the United states to London in the year 1999, when a passenger dropped to the floor in front of my seat. I went to her aid and instructed the air hostesses the course of action. Another fellow passenger asked me if I had medical knowledge. I told him very angrily that I worked in accident and emergencies and that I had worked in five countries. I understood that his question was directed because I was dark skinned. When the patient recovered she thanked me profusely. The Air Line did not recognize my service. I did not need their accolade either. The good Lord knows it all.
To do the right is good and rewarding but with the modern world affairs and some unfair man made policies or laws
seems stopping the righteous individuals or good citizens of a country to do their hard earned career with good practice experience in appropriate use for the community we can serve.
The authorities showed look at the IMG’s that has contributed to the Australian economy and community services for decades, not just black and white off its unfair policies and be more considerate and compassionate, NOTHING IS PERFECT in this world but a man has the human right to do what he has been trained appropriately in a Australian system.
What a waste of talent and skills.
In the past I have always stopped for accidents, and even volunteered to help on an international flight. However I haven’t practised as an anaesthetist, or indeed in any medical role since 2002. Naturally the AHPRA thanked me for my years of public service by taking away my registration, something I am still bitter about.
What is my position? I’d guess there was no legal requirement to assist but if I do am I regarded as a glorified first aider, a physician out to grass, or someone who is as competent now as he was 20 years ago?
For the record, I no longer volunteer in emergencies but I am riddled with guilt about my lack of humanity.
Am also interested in the unregistered retired doctor’s situation, as “good samaritan”cover is offered by Avant Insurance to people in this category as well as “run off” cover.
WHAT OBLIGATION IF ANY, DOES A RETIRED AND UNREGISTERED DOCTOR HAVE ?
If the State has controlled a behaviour by both Statute and common law interpretations by the Courts then Ethical have been effectively nullified as that consideration os of no practical import as it has been superseded by regulation. I often wonder why lawyers always add a throw away sentence in opinions regarding ethical consideration which is not part of a legal opinion.