Today’s correspondent asks if I am:

…aware of any situations, issues, case law precedents around hospitals providing advice to patients over the phone.

I am aware of a recent situation, where a middle-aged person called a local rural community hospital with a three-day history of shoulder, neck and elbow pain.  The nursing staff member who answered the call advised them that they should seek medical advice due to a concern it could be cardiac.  The nurse advised the patient to call an ambulance or get someone to drive them to hospital.  Approximately one hour later the patient was found deceased in the hospital car park.  A review of the CCTV footage after the fact shows the patient approach the front door of the hospital’s emergency entrance but he does not enter or push the doorbell seeking assistance.

The question posed was “should the nurse have called the ambulance themselves if they were genuinely concerned that the patient had a potentially serious problem?”

I am aware of situations where a person has presented at the hospital telling the staff that someone has collapsed at a house nearby.  I know in this situation, calling the ambulance for the patient is the right thing to do.

I would appreciate any thoughts or comments you might have on this.

I am not aware of any case law on ‘hospitals providing advice to patients over the phone’ but I can comment on the scenario using general principles.

We can start with the case that gets mentioned very often on this blog, Stuart v Kirkland-Veenstra [2009] HCA 15.  That case confirmed that there is no general duty to rescue in Australian common law. We can dig a bit deeper on that general claim.  First in that case the issue was a duty to protect Mr Veenstra from harm where he was the source of the harm. That is not the situation described above. Although the case is not directly ‘on point’ there are some relevant observations.  At [116] Gummow, Hayne and Heydon JJ said:

…the police officers did not control the source of the risk to Mr Veenstra as would have been the case if he had been a prisoner in custody. No doubt it can be said that the police officers knew of the particular risk to Mr Veenstra… No doubt it can also be said that they were in a position to control or minimise the occurrence of the observed risk … But considerations of the same kind will almost always be present when a passer-by observes a person in danger. The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue. And unlike the case in Crimmins, it was not the officers who put Mr Veenstra in harm’s way.

At [127] Crennan and Kiefel JJ said:

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm. Such an approach is regarded as fundamental to the common law and has as its foundation concepts of causation. The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… The common law does recognise that some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule. Examples of such relationships are employer and employee, teacher and pupil, carrier and passenger, shipmaster and crew.

We can apply these principles to the scenario.  The person has rung the hospital.  In deciding whether there is some professional relationship one has to consider that the nurse did not control the risk to the patient.  This is quite different is the risk to a patient in the hospital is the risk of medication error or of falls etc.  (Here I’m drawing a parallel to police in a carpark vis-à-vis the duty owed by police to a prisoner in custody and discussed in Stuart v Kirkland-Veenstra, above). The nurse may be aware that there is a risk to the patient’s health and safety, hence the advice to ‘call an ambulance or get someone to drive them to hospital’ .  But just because the ‘[nurse or] passer-by can see there is danger’ and can ‘do something that would reduce the risk of harm’ that does not create a legal duty to take that action.  There is no duty to rescue.

But as noted by Crennan and Kiefel JJ ‘some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule’ that there is no duty to rescue.  To the list given by their Honours there could be added doctor/patient, nurse/patient and hospital/patient.   The first question would be then whether the phone call to the nurse created a nurse or hospital/patient relationship.  In Barnett v Chelsea And Kensington Hospital Management Committee [1969] 1 QB 428 the court was asked to:

… determine the duty of those who provide and run a casualty department when a person presents himself at that department complaining of illness or injury and before he is treated and received into the hospital wards.

Neld J said:

In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care which they owed to the watchmen. Thus I have no doubt that Nurse Corbett and the medical casualty officer were under a duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably …

The question then is whether making a phone call is akin to the patient presenting ‘himself at that department complaining of illness or injury’.  To determine that question I would want to know whether the hospital holds itself out as providing a phone health service.’ If not one cannot demand that a potential defendant provide a service it in no way claims to provide. ‘Health Direct’ (https://www.healthdirect.gov.au/) does claim to provide ‘24 hour health advice and information you can count on’ so you may expect a different level of service, and protocols for when the telephone staff will take action. But a hospital that doesn’t offer a phone in health service may still stand as a stranger to the person who calls.

If the phone call does create a professional relationship, the response to the risk need only be reasonable. It would not be reasonable to expect that ‘a local rural community hospital’ will have the sort of protocols and processes that one might expect from ‘Health Direct’ if it doesn’t pretend to offer the same sort of service.   Further the reasonable response to a risk, in this case the risk that the patient may be having a cardiac event, need only be reasonable.

In Wyong Shire v Shirt [1980] HCA 12, Mason J of the High Court said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

This position has been replaced by a similar, but not identical calculus in modern legislation but the principles are sufficiently similar that considering this list will suffice for our purpose.

The foreseeable risk was that the patient was suffering an cardiac episode and may indeed die without medical intervention such that the nurse suggested he or she should attend hospital. Given the risk is foreseeable the next issue what is the magnitude of the risk? Answer very high, it could be life or death. What was the degree of probability that it was a life and death matter?  Here we know that the patient had ‘a three-day history’ of symptoms, was able to call the hospital and presumably have a lucid conversation without too much difficulty.  Questions to be asked would indeed be how did the caller sound on the ‘phone? When it was suggested that they call an ambulance or arrange a friend to drive them to hospital did they say that they could not do either of those things, either because they were too unwell or otherwise incapable?  One might think the likelihood that this condition would prove fatal within the hour was, objectively judged at the time of the call, low.  Remember that the defendant’s conduct has to be judged at the time.  The fact that the patient did die an hour later is irrelevant. The question is was there any reason for the nurse to think that is what would happen.

What could the nurse have done? He or she could have called an ambulance but there are conflicting duties in particular respect for patient autonomy.  If this patient has indicated that he or she has heard the advice and will take action why would you impose an ambulance upon them? And did the nurse have the details necessary such as the patient’s address? And if the patient appeared capable it would be better for them to ring the ambulance so they can relay their sign and symptoms and answer the call taker’s questions.

That doesn’t mean there may not be a duty to call an ambulance (assuming the circumstances did give rise to a therapeutic relationship).  Where the patient is clearly struggling for breath, reporting urgent symptoms, barely able to talk etc. That all goes to the assessment of how likely is the poor outcome.  If we don’t take into account the practitioners assessment of ‘the degree of the probability’ of a poor outcome, we would have to say that every time someone rings a hospital for advice they have to call an ambulance ‘just in case’ and that can’t be reasonable.

Where someone comes into a hospital and tells the staff that ‘someone has collapsed at a house nearby’ we may think calling an ambulance is a reasonable response but that doesn’t mean that there is a legal obligation to call the ambulance and secondly a person collapsed is quite different to a person on a phone reporting a three-day history of symptoms.

As for the person collapsed in the car park but who did not ‘enter or push the doorbell seeking assistance’ there would be a duty to provide assistance to them but only once they are discovered.

Conclusion

One really can’t say whether ‘the nurse [was under a legal duty to] have called the ambulance themselves’.  It would depend on the nurse’s assessment of the patient’s capacity, the severity of the symptoms, any operating protocols or procedures of the hospital, what information the nurse had about the patient.  Issues like this all depend on the assessment of the situation at the time of the call, when the person did not know that the patient would be found dead an hour later, and a ‘reasonable’ response to the situation as it presented itself.

My ‘gut’ reaction would be that as a general rule there would be no legal obligation to call the ambulance but my view might change if the hospital did claim to offer a phone in health service and/or the patient was in obvious distress, or ‘in extremis’ whilst on the ‘phone.

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