This question comes from a volunteer with St John Ambulance. My correspondent asks:
A question I haven’t seen directly addressed concerns whether an on-duty volunteer has a positive duty to act and come to the aid of an injured person? I raise this following on from your remarks in “RFS volunteers as roadside good Samaritans”. You may wish to comment on a factual scenario as follows:
- Suppose I am a member of a voluntary community organisation in Queensland – St John Ambulance.
- St John Ambulance provides first aid services at an event, but is not paid to attend. A donation may be requested – but not a fee for service “contract”.
- I agree to perform the particular duty by signing up through the St John system.
- I attend the duty wearing the St John Uniform.
- I am approached by a injured person at the event seeking assistance.
- Do I have a positive duty to act and attempt to assist the injured person? When? Limitations i.e. within my scope of training, etc?
Of course, in most cases the St John volunteer would render assistance – that is why they volunteer, etc. But is their sufficient proximity to hold a tortious duty to act? Public policy immunity? Clearly, they have a duty of care once first aid is commenced.
I raise this as I’m not certain whether the proximity arguments in Lownes v Woods in establishing a duty to rescue would apply in the above factual matrix. In addition, I note that Deane, J in Jaensch v Coffey made it clear that policy would also need to be considered in the formulation of a duty of care, saying “the notion of proximity is obviously inadequate to provide an automatic or rigid formula to determining liability”.
You may have touched on these issues in earlier articles, however, I was unable to find anything directly on point. Where do you side is this ideological debate? With the liberalist assertion that it is illegitimate to use the coercive power of the state to enforce positive duties of beneficence in terms of encroaching on individual liberty or the more philosophical utilitarian argument for a duty to rescue.
I don’t see this is part of the ideological debate about whether or not there is a duty to rescue at all – that debate revolves around the question of a duty to come to the aid of a stranger – a person with whom the potential rescuer has no other relationship. Some people do have a duty to ‘rescue’, the traditional relationships are teacher/student, gaoler/prisoner, doctor/patient etc. What made Lowns v Woods (1996) Aust Torts Reports 81-376 unique is that Dr Lowns was asked to travel to assist Patrick Woods even though the young boy was not and had never been his patient.
Jaensch v Coffey (1984) 155 CLR 549 was a case about negligent infliction of mental harm and trying to determine to whom a duty of care was owed, I don’t think it’s really relevant here for reasons I’ll give below.
What the scenario I’m asked to consider is where St John are on duty for an event organiser and a participant of the event seeks assistance. This is not about a duty to rescue a ‘stranger’ this is about performing the very duty one is there to do. If we go back to the start of negligence law and Donoghue v Stevenson [1932] AC 562 (the famous snail in the ginger beer case) it was said we owe a duty to those most likely to be affected by our acts or omissions. The issues of ‘proximity’ that my correspondent raised reflect debates in the cases over how to limit that duty as we can imagine many fanciful steps that would see liability extending forever. Courts know that can’t be how it would work so there are some outer limits, but in this case the people most directly affected are the event organiser and the potential patients.
The event organiser needs (or wants) first aid attendance at the event so there is an agreement with St John. If they don’t perform the duty they have agreed to do then the event organiser cannot provide the service agreed, or reasonably expected, by participants. If there is a first aid tent and someone come seeking assistance but first aiders decide not to offer treatment, the question becomes “who will be directly affected by that decision?” And the answer is clearly “the patient”. It follows that the first aider has a duty to take care, when making their decision. Generally speaking the only reasonable response will be to provide first aid to the patient in accordance with the first aiders training and given that is what they are there for. Failure to provide treatment, unless there is good reason to support that decision, will be a breach of that duty.
The fact that St John may not receive a fee for their attendance does not mean there is no agreement. St John agree to attend and provide first aid services and in return, if nothing else, the members get to go and do what they chose to volunteer for and for which they receive the reward that they perceive they get. The organiser relies on St John, if they thought St John were going to show up but not treat people they wouldn’t invite them and would get someone else to provide the first aid services. There is both an exchange of promises and reliance sufficient in my view to give rise to a contract.
So St John owe a duty to the organisers and the patients. That duty would arise both under the common law of negligence and under contract. I cannot see anyone seriously running the argument that the volunteer on duty did not have a duty to treat a person who attended the first aid post seeking assistance.
I don’t see this cases raises any of the issues raised by Lowns v Woods or Jaensch v Coffey. This is not about treating a stranger (see Who to treat? A question for St John first aiders (June 30, 2013)) or extending a duty to new areas. Here the presence of the duty to treat is axiomatic. If one did want ot consider the arguments in Lowns v Woods (1996) Aust Torts Reports 81-376 in that case the doctor was approached at his surgery where he was ready to see patients but not yet seeing any patients. He was approached because he was a doctor and the patient was clearly physically close as the person seeking assistance had run to the surgery. If that was sufficient to establish liability it would be more so here. Here the first aider is approached at the place where they are holding themselves out to provide first aid, they are ready to see patients, the patient has come to them so they are close and unlike the doctor who had an appointment system to see his pre-existing patients, the St John volunteers are saying ‘we are here for everyone at this event’. If Dr Lowns owed a duty of care (which he did) then the St John volunteers in the circumstances described here do too; even more so.
Who would be liable? It might be argued that the volunteer has no duty as he or she is a volunteer, but St John would have the duty. St John agreed to provide first aiders and if the person who attended does not give first aid, St John has failed in its obligations. If I was the lawyer and if the patient could prove that the failure to administer first aid made their case worse you would run the case that both the volunteer and St John were negligent. If the volunteer was negligent St John would be vicariously liable and if St John were negligent they would be liable in their own right.
As for vicarious liability one might argue that the failure of the first aider meant they were ‘on a frolic of their own’ and there should be no vicarious liability but remember that the point of a negligence action is to ensure that the person who suffers a loss receives compensation. To allow St John ‘off the hook’ would deprive the injured person of an effective remedy. The person on duty is there representing St John in their uniform, their failure is St John’s failure so I don’t think a court would accept that St John should not carry the responsibility for their failure.
To conclude
In the scenario described there would be a duty to treat. This is not about a duty to treat a stranger. There is no law directly on point because a) first aiders don’t get sued, b) first aiders on duty one assumes actually treat people who come to them and c) the case would never get to court on that issue. The presence of a duty in that case is axiomatic, no-one could seriously argue there was no duty to treat.
In my view the first aid organisation (that for this example we’ve been calling St John) would be liable both in its own right for failing to provide the agreed service and for failing in its duty and also for negligence of its volunteer.
Australian Emergency Law 
I suggest that it is important to understand that none of the above
could operate to create a duty such that a patient (or would-be patient) would be obliged to accept first aid that they don’t want.
I further suggest that a first aider does not fail in any duty that they may have if a patient (or would be patient) refuses their assistance, or if a patient withdraws consent once treatment has commenced.
It is also important to remember that the first aider’s first duty is to him/herself. The D in DRSABC applies to the first aider long before it applies to the patient…. a longstanding notion of First Aid doctrine which these days enjoys a statutory basis in section 28(a) of the Work Health and Safety Act 2011 (Qld).
A first aider might reasonably (and lawfully) refuse to treat a patient where the first aider could not meet their duty under s28(a).
A real life example of which might be the when universal precautions equipment is not available, or when the patient (or would be patient) is aggressive/ violent (perhaps intoxicated).
I further (and finally) suggest that a first aider is not under any duty to actively seek out patients. Thus I suggest that a first aider does not fail in their duty if they set up at one location, but don’t actively “patrol” a site/event/venue.
This is becoming a discussion between lawyers as both my original correspondent and Tim Williams are lawyers too. With that said I don’t know that I agree with your analysis, Tim. I do note that the issues you have raised were not raised by the original question which asked me or us to assume the person was on duty with St John. Given that assumption I would suggest some different conclusions to your own.
First, I agree entirely that a ‘duty to treat’ (really a duty to provide the service the organisation has agreed to provide) does not and cannot impose a duty to impose treatment on a person where they do not want that treatment.
The Work Health and Safety Act 2011 (Qld) s 28(a) says “… a worker must— (a) take reasonable care for his or her own health and safety…” What is reasonable has to take into account all the factors listed in s 18 which is a classic risk assessment. As for a situation when ‘universal precautions equipment is not available’ I don’t think that would justify non-treatment. Assume a person is brought into a first aid post with torrential life threatening haemorrhage. The first aider may say ‘it’s unsafe to treat as I don’t have gloves, eye protection etc’. That would not excuse them. Whoever was responsible for determining the kit that is available, whether that is the first aider or the organisation for which they work, must be negligent in not ensuring the basic gear necessary to do the job consistent with the level of training was available. Not everyone is an advanced life support paramedic so there can be no issue that a first aid post is not staffed by a paramedic with his or her drug kit, but having gloves etc would be an expectation of any first aid service. If the patient bleeds to death I don’t think it would be any defence to say ‘but we didn’t have the sort of equipment that should be carried by any first aid organisation’.
Equally if a patient is “aggressive/ violent (perhaps intoxicated)” I don’t think that would deny the duty to treat but it may well affect what treatment is given. If they have a minor injury and are just being belligerent then that is your first point, ie people don’t have to have treatment and you can’t impose treatment people don’t want. But what if the person has taken an unidentified drug and have been brought to the first aid post by people concerned for their welfare. They have to come the first aid post for first aid. If the person is being violent then it may be that they can’t be treated how the first aider would like to treat them but that does not mean there is no duty to take steps to care for them. Those steps may be to remove items that they may use to injure themselves and remove other people from the area and to call for assistance. That assistance may be from the state ambulance service with paramedics who may be able to chemically restrain the patient or from police who may physically restrain the person (see Physical restraint of patients by paramedics (February 14, 2014) and Physical restraint of patients – WA (June 1, 2014)). The treatment that may reasonably be given may be adjusted, but the duty to care for the person remains.
As for a duty to seek out patients or ““patrol” a site/event/venue” I think such a duty could be made out. First it would depend on the services that the first aid organisation agreed to provide. Then there would have to be consideration – a risk assessment – of the activity involved. If the service is to provide first aid at a sport event where a first aid post is set up in the middle of 4 ovals where concurrent games are taking place then sitting there may be fine. If the event is a complex, multi-venue event (say an agricultural show or a multi-stage music festival) where events are happening around the event area and where you can predict people may need assistance at any of those venues, sitting in your first aid post may not be a reasonable response to the assessed risk. Saying ‘we were there but over in the back corner where people couldn’t find us’ is hardly a reasonable response. There are ways to deal with that, promote a phone number that is displayed around the venue, have radio contact with security so the security staff are doing the patrols, or get out and patrol What is the ‘correct’ response will depend on the resources available and the potential risks. There is much literature these days on planning for and preparing for public gathering events (see for example Zeitz, Bolton, Dippy et al, ‘Measuring emergency services workloads at mass gathering events’ (2007) 22(3) Australian Journal of Emergency Management 23-30; Arbon, The development of a web-based algorithm for the prediction of patient presentation rates at mass gatherings (2002) 17(1) Australian Journal of Emergency Management 60-64) and should, for example, a person die at a public event and the issue arise as to why the first aid people couldn’t be found or respond such an organisation would want to show that it had thought about the issue and the risks. It may well be that sitting the members at a first aid post without any ‘active’ patrol may not be a ‘reasonable response’.
Finally I would add too that the first aiders would need to be prepared to respond if requested. Just as in Dr Lowns’ case it was not sufficient to simply say ‘bring the person to me’ I would suggest that is also true in a first aid context. If a person comes to a first aid post and says ‘someone needs your help over there’ it would not be a reasonable response to say ‘bring them to me’ (but see again the discussion in Who to treat? A question for St John first aiders (June 30, 2013)
As a member of St John for a fairly long time (and not a lawyer), I’ve heard this discussion many times from many different people usually with similar conclusions.
Some of the initial scene raised in the initial question put forward may be slightly different however.
St John Qld is on many occasions, setting the “rate of donation” based on the level of training and experience of the members attending the duty. At the end of the event if the event operator does not give the “donation” to the member attending, it is also common for St John to send a letter requesting the agreed “donation”. Not sure if this could be taken as a “fee for service”, or how that effects St John’s not for profit or charity status; that’s for the lawyers to discuss. Personally I don’t see this affecting the individual member’s duty or obligations, but may have an effect on the organisation and it’s duties.
Most new members are advised that they are there to treat patients if it’s safe to do so. They are sometimes advised that they have a moral obligation to treat patients who present themselves. This being either direct treatment or making them comfortable while calling 000. Many see our duty of care starting when we say those three words “Can I Help?”. Members are not trained to run into fires or collapsing buildings etc. but are advised to leave that to those who are properly trained. Lack of equipment or lack of knowledge can be supported by the “On-Call” staff (both medical and non-medical). Members are also trained that if in doubt about their ability to treat a very serious injury, they should call a more experienced member if available, the on-call staff or 000.
If a member comments that they would refuse to treat someone, they are asked “why are you in uniform?”. Our Order’s motto is after all “For the Service of Mankind”.