This question has come up time and again. This time it’s from a life saver in WA who says:
I’m employed by St John Ambulance (WA) as an Event Medic and I also volunteer for them from time to time in a similar role. Additionally, I volunteer at a surf club. As a paid/qualified Emergency 1st Aid provider, when volunteering for either organisation can I be held to account given the higher level of skills I’m trained and employed to use or does the Good Samaritan Act apply at the times I’m volunteering? (Our qualification is Cert IV in Ambulance Care equivalent).
For some earlier, related posts, see
- Student Doctors and Scope of Practice (May 15, 2016);
- Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016);
- NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015);
- Good Samaritan legislation and scope of practice (March 27, 2015);
- Doctor as volunteer Life Saver and scope of practice (February 6, 2015);
- ALS Paramedic as volunteer with St John (WA) (April 5, 2014);
- ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013);
- Treatment outside the protocol (April 2, 2012);
- Medical care and medical emergencies (December 30, 2012); and
- Volunteer nurses and their skills (December 12, 2012).
The answer is, if you’re providing care to someone, you know what you know and you can do what you can do. No-one, certainly not the patient or a judge, is going to reward you for pretending that today, you don’t know, or can’t do something that clearly you can. And certainly they’re not going to reward you for saying ‘I didn’t do everything I could do because I was afraid of my legal exposure or the exposure of your organisation – that I was putting everyone’s interests ahead of the person in need of care’.
A person is entitled to expect ‘reasonable care’, what is reasonable depends on the person’s level of training and knowledge. If there is something you can do and you identify that it needs to be done, then it would be reasonable do to it. Imagine the counter example, assume for example you know how to use an epipen and to recognise the need for it. A patient is having an anaphylactic episode and would benefit from the treatment. There is an epipen to hand. But assume you are, at that time, acting as a volunteer surf lifesavers and the use of an epipen is not part of the life saving training. Do you use it or not?
If you don’t use it do you think anyone is going to thank you for not doing what you could have done? If you do use it is anyone going to sue you? (And if they do sue, whether you use it or not, it won’t be you but the organisation for which you volunteer that will wear that burden. But remember, there are NO cases of law suits in these situations.) The reality is you are much more likely to be sued for not doing it because here was a person in need, you were providing some care and there was something you could have done but didn’t. The good Samaritan legislation won’t help with a decision not to act if your motivation is ‘but today I’m a surf lifesaver’ because you are not acting ‘in good faith’ for the benefit of the patient, but to cover your own backside.
This discussion is only relevant if you don’t need special equipment or you have what you need. If, for example, one of the skills you have is knowledge of how to intubate, but you don’t have an intubation kit with you, then you can’t be expected to intubate the patient nor can you be judged on the basis that if you’d had that kit, you could have done something more for the person.
As for the good Samaritan legislation (in WA, the Civil Liability Act 2002 (WA) ss 5AB-5AE) it says:
A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.
A ‘good samaritan’ is any person ‘acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’. I don’t think it applies to St John or lifesaving volunteers. They are at an event or a beach with the very purpose of providing emergency assistance. The members do not get paid (either by the service or the patient) but they do get other benefits from their membership and their volunteering. To extend good Samaritan protection to those volunteers would say that those organisations that hold themselves out as being expert at providing that care, do not have to provide ‘reasonable care’ to their patients. That was not the intention behind the legislation and I don’t think the Act would be extended that far.
In WA the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA) would ensure that a volunteer is not personally liable but that the organisation for which they volunteer (in this case St John (WA) or the surf lifesaving association) would be. I do not think the Civil Liability Act was intended to defeat the policy in that legislation which is to ensure that people who are injured by a negligent volunteer are not left without a remedy.
It is my view therefore that the ‘good samaritan’ provisions do not apply to a first aid volunteer when ‘on duty’.
Conclusion
Can I be held to account given the higher level of skills I’m trained and employed to use?
Answer: Yes, you have those skills and knowledge. If you’re going to help someone, do what you can do to help.
As a general observation, if a person is going to volunteer in an emergency service, but is unwilling to do their best for the person who needs help because of some misperceived fear of legal liability – believing that somehow the law would prefer a person not to do whatever they can to help – then it’s time to reconsider that volunteering.
Does the Good Samaritan Act apply at the times I’m volunteering?
Answer: In my opinion, no. When volunteering, the relevant law is the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA). Even if the ‘good samaritan’ legislation did apply, it would not justify withholding care that a person can identify is needed and which they can reasonably provide.
Australian Emergency Law 
With regard to the Good Samaritan laws … would an individual who has volunteered to be the nominated first aider for an event be covered? There is an expectation that they will render assistance and they often receive non monetary benefits (food, entertainment,etc).
Gary, in my view no they wouldn’t or perhaps, I should say ‘no they shouldn’t’. Whether they would or not has not been tested and see the comment from Stuart Clark, a solicitor who’s opinion I greatly respect, who takes a different view.
But, with respect to Stuart’s comments, the volunteers do not receive payment but I think they do receive ‘other rewards’ (and see here comments, albeit in a different context, in relation to rewards for volunteering in Castle v Director General State Emergency Service [2008] NSWCA 231).
The separation of powers means that the interpretation of law is a matter for the court, not the Parliament and the court interprets the words used, not what the Minister said he was hoping to achieve so although the second reading speech is relevant it does not determine the matter. Other sources to consider (which again don’t determine the matter) are the Ipp report which recommended against good Samaritan provisions but which identified the problem that they were intended to solve as people, in particular medical practitioners, coming forward at accidents not volunteer first aiders.
There is a US case that I can’t, at the moment, provide the citation for that said with respect to similar provisions they do not apply where people are already under a duty to attend the emergency. Now first aid volunteers aren’t under a duty to volunteer, but when they do volunteer at an event or as surf lifesavers they, or the organisation they volunteer for acting through them, are likely to be under a duty to do the task they’ve agreed to do, that is provide first aid services at that event or beach. The person who does receive benefits from volunteering isn’t merely a stranger coming out of the crowd but a person who is there for that very purpose so I don’t think they are a ‘good samaritan’.
The issue is of course moot – ie irrelevant at least in most jurisdictions. Partly because volunteers don’t get sued, this legislation was enacted to solve a non-existent legal problem, it was enacted to solve a political problem – ie it looked good in the press.
Second, the ‘volunteer’ provisions in most states provide that a volunteer is not personally liable but the organisation for which they volunteer is. For the plaintiff suing the surf club or St John Ambulance that provides the protection for the volunteer but ensures that the agency which is holding itself out as the expert in the field is held to the normal standard – did the patient receive ‘reasonable care’. It really makes no difference to the volunteer whether they are removed from the action on the basis that they are a ‘volunteer’ or a ‘good samaritan’. I would say, however, that the presence of the volunteer protection provisions is evidence that the good Samaritan provisions are intended to apply to volunteer first aiders because they are protected by the volunteer provisions.
What difference does it make? If the good Samaritan provisions are applied to volunteer first aiders then it raises the question that if the volunteer is not liable, is the organisation for which they volunteer? If the answer to that question is ‘no’ then the provisions designed to protect good Samaritans will mean that agencies like St John or Surf Lifesaving, experts in their field, don’t have to provide ‘reasonable care’ to people who come to their aid. The second reading speech, quoted by Stuart, says ‘It is not intended to alter the potential liability of a community organisation by providing the individual members with immunity’ but applying the good Samaritan provisions to volunteer first aiders might do just that (and certainly will in NSW given the Civil Liability Act 2002 (NSW) s 3C which is unique to that state and which says ‘Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort’ and for a discussion on that section and how to get around it, see Use of Artificial Airway by a Sports Volunteer (March 14, 2016)).
Another anomaly in applying the good Samaritan provisions to volunteer first aiders would be that in some cases, where an ambulance service uses both volunteers and paid staff, the standard of care would be different. A paid officer would have a duty to provide ‘reasonable care’ but a volunteer only a duty to act ‘in good faith’ but the patient can’t decide who provides care and in many cases, won’t be able to tell the difference. A better approach, again, would be to say that the volunteer is not liable but the organisation is. That would remove any doubt that the agency is vicariously liable for both its employees and the volunteers and put the volunteers and the employees in the same legal position.
In my view that it would be perverse if the good Samaritan provisions were applied to volunteer first aiders whilst on duty. They are people who put on a uniform and hold themselves out as having skills in the area and being ready, willing and able to provide first aid. They are at the beach or the public event to provide first aid. They are not, like the parable, someone who just come across a person in need, they are there for the very purpose of finding and helping those in need. And they get rewards for their volunteering, whether it’s the opportunity to be at that event, to be part of the team and enjoy the comradery that they get, for training and experience that they enjoy and which for some aids in their employment etc. When a person sees an accident in the street and steps forward they do so out of concerns of need and humanity. When a person puts on their uniform and goes on duty, where they may or may not have to treat someone, they may be motivated to volunteer ‘Pro Utilitate Hominum’ (for the service of human kind) but there is no doubt that they do get other benefits from that service.
So whilst it is no doubt debatable and perhaps something that will never be tested, it remains my view that the good Samaritan laws don’t, or at least shouldn’t, apply to volunteer first aiders at an event, or beach.
Michael – I have not looked at the WA legislation but my view is that a volunteer in NSW can rely on the protection of the Civil Liability Act (NSW) good Samaritan provisions. In my view volunteers do not receive any “payment or other reward” for their actions [remember its actions not membership of the organisation].
For what its worth the second reading speech supports that view where the Premier said:
“The bill will also protect the good faith actions of good Samaritans who come to the assistance of a person in danger. This will mean no liability for voluntary rescue organisations, such as surf life saving clubs, if a person is injured in the course of or in connection with a rescue. Individual volunteers will also be protected from law suits where their actions were done in good faith. It is not intended to alter the potential liability of a community organisation by providing the individual members with immunity.”
Hope you are enjoying the UK!
Stuart
Michael,
I know that you have responded to many questions that have a common theme and respond with the notion that individuals are likely to be held to the higher skill and a court would more likely question why something wasn’t done rather than why it was.
What I query is that this view / opinion tends to send a message that organisational clinical governance frameworks and process (professional recognition, clinical credentialing and issuance of scope of practice etc) are largely superfluous…?!?!
What concerns me is that whilst individuals can only work with the equipment provided, some will use the ‘greater good’ argument to supply their own equipment and additionally I am concerned (especially with healthcare professionals) that ‘context’ is a large contributor to an individual exercising clinical judgement and undertaking a skill.
What if an organisation used a robust clinical credentialing framework to determine the clinical scope of practice of its staff and despite an indivual claiming to be qualified / certified in an ‘advanced’ skill(s), the organisation/credentialing process did not include it in their scope of practice..?! Hypothetically, where does this leave the individual and organisation.
Being trained and/or qualified in a skills and Exercising their judgement in undertaking that skill in their work environment vs in a hostile, minimally resourced mass gathering environ with no similarly or higher skilled clinician for support is a very different shift in context for many clinicians, (I accept for some it will be a comfortable and easy shift but for many (especially doctors and nurses) it’s an unfamiliar one…
So, should organisations continue to seek to improve clinical governance or is it irrelevan..?!?!
That’s a great question, and one that warranted a post all on its own – see https://emergencylaw.wordpress.com/2017/01/21/scope-of-practice-previous-posts-explained/