Today’s question comes from a nurse educator in Queensland who has…

a question … about the good Samaritan law here in Qld. I understand that they would be protected from civil proceedings if providing emergency assistance at the scene in good faith and without gross negligence or expectations of payment. I note that NT, Tas and SA also add an exception if affected by drugs or alcohol. In Qld do we take being affected by drugs and alcohol as being grossly negligent or would the Samaritan be ok as long they don’t do something that is grossly negligent even if affected? I’m just not sure how to explain the difference to the students.

The various good Samaritan provisions are detailed in my earlier post Good Samaritan legislation – a comparison (February 22, 2017).  For nurses and medical practitioners the relevant protections are set out in the Law Reform Act 1995 (Qld) s 16:

Liability at law shall not attach to a medical practitioner, [or] nurse … in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency—…

if—

(c) the act is done or omitted in good faith and without gross negligence; and

(d) the services are performed without fee or reward or expectation of fee or reward.

With respect to good Samaritan’s who are affected by alcohol, see Excluding good Samaritan protection for the intoxicated (March 17, 2016).  In that post, I was discussing the introduction of s 5(2)(b) into the Civil Law (Wrongs) Act 2002 (ACT). That section provides that a good Samaritan does not enjoy the ‘good faith’ protection if ‘the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug’.  Recreational drug means ‘a drug consumed voluntarily for non-medicinal purposes, and includes alcohol’ (Civil Law Wrongs Act 2002 (ACT) s 2).

There I said:

My opinion is that s 5(2)(b) is a complete rubbish section and should be removed.  Its presence defeats the purpose of the Act.  Remember that there are no reported cases of anyone being sued for rendering emergency first aid – that’s no one, ever – see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015).

Legally, the good Samaritan provisions are not necessary… So if there was no legal problem to be solved why was the legislation introduced? Answer, to solve a perception problem – that is if people had ‘a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations’ and that made them unwilling to come forward, enacting good Samaritan legislation might remove that anxiety and therefore encourage people to act.  No doubt a good and sufficient motivation.

But why add s 5(2)(b) when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs…

My opinion is that the good Samaritan legislation was introduced to resolve a perception problem not a legal problem.  Having enacted good Samaritan legislation however, every jurisdiction other than Victoria and Queensland have moved to make the legislation ineffective when it might actually be needed that is when a person who could actually help knows they’re not performing as they might at work.   It is then that people should be reassured that if they do their best to help they won’t be liable because doing something is better than doing nothing.

Conclusion

The difference is that the Queensland Government has not (yet) passed a stupid amendment to the law. In Queensland ‘the [nurse] Samaritan [is] ok as long they don’t do something that is grossly negligent even if affected’.