This question has come by roundabout means. It was posted on a nursing facebook page called ‘The Nurse Path’ and was sent to me by one of the followers of that page. The person who asked the original question did not send it to me but this page seems public as I can access it and I haven’t subscribed to it. As the question is in the public domain I’ll answer it here (I’ll also put a comment on the Nurse Path page so they know I’ve done that).

The original question was:

“I’m a new grad nurse and I’m just trying to find any information/policy/legislation relating to registered nurses and stopping at car accidents. I saw an accident on my way to work and was under the impression that because I was in uniform I had to stop. But some colleagues have agreed that I had to while others have said that by stopping I have left myself open to legal action should the patient not fully recover. Everyone seems to have their own opinion or theory that they’ve heard so I was hoping get someone would be able to point me in the direction of some hard evidence.”

The person who sent the question to me has added:

I’ve read recently that you posted abut no obligation to rescue but what is the correct assumption of ‘Good Samaritan’ laws, are they simply part of large acts or is it more complex than that? I was under the impression that there wasn’t any but already I’m surprised by many variants across the country from posters.

Each Australian state and territory has introduced good Samaritan legislation. The model adopted in the legislation is reasonably consistent across the jurisdictions, except Queensland. A ‘Good Samaritan’ is someone who comes forward to render assistance in a medical emergency without expectation of being paid. A ‘Good Samaritan’ is not liable for any damage caused by their well-intentioned acts or omissions. Further, a medical practitioner, (or in Tasmania and Victoria, anyone) who provides advice on how to treat an injured person is not liable for any error or omission in that advice. (Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) ss 55-58; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Law Reform Act 1995 (Qld) ss 15 and 16; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35A-35C; Wrongs Act 1958 (Vic) ss 31A-31D; Civil Liability Act 2002 (WA) ss 5AB and 5AD.) The Queensland law only provides protection from civil liability for doctors and nurses, and members or employees of listed organisations (such as the volunteer emergency services) (Law Reform Act 1995 (Qld) s 16).

The common law says that, generally, there is no duty to go to the aid of others. The one notable exception to this rule was the case of Woods v Lowns (1996) Aust Torts Reports ¶81-376 where a doctor was approached at his surgery and asked to provide emergency assistance to a boy near-by. The court found that Dr Lowns was under a duty to render emergency medical care but this was because he was at work holding himself out as a doctor, the patient was very close (the person who approached him for assistance, the boy’s sister, had run to the surgery) and he was not yet engaged seeing patients so there was no impediment to him going. Further he gave evidence that had he gone he would have been able to make a difference. (He denied he was asked so the case came down to his word against the boy’s sister). The case did not say that a doctor is always under a duty to assist just because he or she is a doctor. The question of whether a doctor at an airport is under an obligation to go to help when he or she hears a call “Is there a doctor in the terminal?” was not definitively answered.

In Medical Board Of Australia v Dekker [2013] WASAT 182 it was held that failing to at least go and see if people needed help when the doctor was aware that there had been a serious car accident (as she was nearly in the accident) constituted unsatisfactory professional conduct (see ‘Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident’).

So the general rule is that one doesn’t have to go and help in an emergency but there is an expectation that health professionals will render assistance when they are aware that assistance is required. In the right circumstances failure to do so may lead to civil liability or professional discipline. Civil liability would not apply to a nurse on his or her way home from work, but it may to a nurse say travelling in car marked ‘home nursing service’ where someone flags them down and asks to assist.

If one does stop then the common law would require you to act as the reasonable person with the same skills and training, the reasonable nurse, the reasonable paramedic etc. That is not a guarantee of good outcomes so it is not the case that you leave yourself ‘open to legal action should the patient not fully recover’. Your duty, at best, is not to make the situation worse than if you had not been there at all (Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865).

The good Samaritan legislation has changed that standard, now the law only requires you act in ‘good faith’ that is with a genuine desire to help (Lowry v Mayo Newhall Hospital 64 ALR 4th 1191 (Cal 1986), 1196; Vaughan v Webb (1902) 2 SR(NSW) 293) with some common sense, ie not doing anything plainly stupid or beyond your level of competence (Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290).

Any fear of legal liability from stopping to assist at an accident is an over reaction to common myths. No medical professional (or anyone else) has been sued in these circumstances (though one has been sued, and one disciplined for not providing assistance). At any accident it will be easier and more productive for the injured person to sue the person who caused the accident, not their rescuer. The law has said there were there is negligence by the rescuer the person who originally caused that accident is liable for the entire damage (Haynes v Harwood [1935] 1 KB 147). Further when assessing whether or not a rescuer, whether a nurse, a doctor or a layperson, was negligent all the circumstances must be taken into account. The circumstances include the urgent and unusual nature of emergencies even for health practitioners (at least those that are not usually providing road side emergency assistance).

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. (Leishman v Thomas (1958) 75 WN(NSW) 173, 175).

Is there a duty to attend? For health professionals there may be taking into account all the circumstances, but at least if they are asked in a professional capacity whilst at work.

Will you be liable if you do and the patient does ‘not fully recover’? No, liability could only begin to be an issue if you make the situation worse so that the person would actually have been better off if you had not turned up at all.

What is the standard of care? Where the good Samaritan statutes apply, the relevant test is ‘did you act in good faith?’, otherwise it’s ‘was your conduct reasonable in the circumstances’? which includes the circumstances of the emergency.

Remember: No-one has ever been sued for rendering good faith, voluntary emergency care at an accident side.