Today’s correspondent is a first aid trainer in a Victorian prison.

In my recent class, there were several questions from the guys about possible legal consequences when offering first aid.  They were particularly concerned that having a prison record would mean that they might be harshly penalised if something went wrong.  For example, one man said that he had performed CPR, called an ambulance and accompanied a friend to hospital following a drug overdose.  He was then accused of causing the injury by the casualty’s family and told they would pursue damages.  He asserted he hadn’t been involved in the casualty taking drugs but found him in an unconscious state and responded.

My message to the learners is that they are protected by Good Samaritan legislation and the Common Law as long as they don’t act recklessly take all precautions to avoid causing harm or further injury to the casualty and bystanders, only perform first aid to the level they hold a current certificate in and obtain permission to treat a conscious casualty or minor.

  1. Should they still perform first aid on a minor when no parent or guardian is present to grant permission?
  2. Would they be charged with breaking and entering if they know there is an AED (defibrillator) in say a nearby bowls or footy club and a member of the public is having a cardiac arrest but no-one had a key?

First, the person’s criminal record shouldn’t matter.  Certainly if the matter ever ended up in court, the person’s prior criminal record would be irrelevant and not put before the court (Evidence Act 2008 (Vic) ss 55 and 91). That doesn’t mean, of course, that police or others may not think the issue is relevant and it may well influence their decisions in a particular case.

The fact that one of the students ‘was then accused of causing the injury by the casualty’s family and told they would pursue damages’ does not reflect anything about the law, but human nature. No law can change that.

As for good Samaritan legislation, the relevant provisions are in the Wrongs Act 1958 (Vic).  This provides protection from civil liability for actions taken in ‘good faith’.  The Act does not require the first aider ‘only perform first aid to the level they hold a current certificate in’ – see:

People should also remember that in New South Wales and the Australian Capital Territory, good Samaritan protection is lost if the first aider is intoxicated – see Excluding good Samaritan protection for the intoxicated (March 17, 2016).

With respect to the specific questions:

  1. Should they still perform first aid on a minor when no parent or guardian is present to grant permission?

There is no duty to provide first aid, so the question is ‘do they want to help and what is the risk?’ As a matter of law there is nothing to stop them particularly if there is a risk of death or serious injury.  See

The fact that the person has been a prisoner shouldn’t stop them but I don’t deny that in today’s judgmental culture there may be issues with other people’s perception. As with everyone who has to consider doing first aid they have to consider for themselves what the risks are.

  1. Would they be charged with breaking and entering if they know there is an AED (defribrillator) in say a nearby bowls or footy club and a member of the public is having a cardiac arrest but no-one had a key?

Of course I can’t answer that. That would depend on the investigating police.  Would I recommend that action? Answer ‘no’.  There is no duty to rescue so there is no duty on the club to provide access to the AED. By breaking in one would, no doubt, cost the club and someone has to pay for that damage – one is then compelling the club to meet a cost that they are not obliged to meet.  But that answer is somewhat simplistic, as always one has to consider the risks to the patient.

First people collapse in sudden cardiac arrest in many places. There is no guarantee or expectation that there will always be a defibrillator or that it will work.  The fact that there isn’t one to hand doesn’t impose an obligation or expectation to go and find one. Further the time that it would take to run to the nearby club, break in and then get to the patient is likely to be too long particularly if no-one else is doing CPR – see CPR success: TV v Reality (September 3, 2015).  If there isn’t a EAD readily available, the first aider is better off doing CPR than running to the nearby club to try and break in.

The answer to this might be different if, say, the person collapsed IN the club and the EAD was in a locked cupboard with staff saying ‘only the manager has the key and we can’t find him/her’.  In that case one might argue that the club had a duty to its own patron, there is no point keeping an AED in a locked cupboard and the cost is relatively low.

With respect to ‘break and enter’ that does not appear to be an offence in Victoria (cf example Crimes Act 1900 (NSW) s 109-113).   In Victoria, the relevant offence would appear to be burglary – Crimes Act 1958 (Vic) s 76(1). That section says:

A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—

(a)       to steal anything in the building or part in question; or

(b)       to commit an offence—

(i)        involving an assault to a person in the building or part in question; or

(ii)       involving any damage to the building or to property in the building or part in question—

which is punishable with imprisonment for a term of five years or more.

A person breaking in to access an AED is not intending to steal or commit an offence involving an assault or damage to the building (noting that the damage referred to in s 76(1)(b)(ii) has to be part of the offence that the person intends to commit when they break in, not simply the damage done during the break in).  That does not mean that they might not be accused of some other offence such as destroying or damaging property (s 197).  One would hope that this would not happen if the intention was to try and save a life. Further the honest intention to save a life may well be a defence, but that doesn’t mean that the person, regardless of whether or not they are a former prisoner, won’t be charged.  As noted that depends on the attitude of investigating police.

In short, I would not recommend anyone break into premises to secure an AED, regardless of whether or not they are a former prisoner.  There are probably more useful things to do such as commencing CPR, calling an ambulance and directing them to the patient.  But, having said that, never say never, in the right circumstances such an action could be justified – The doctrine of necessity – Explained (January 31, 2017).