This post follows nicely from my last one – First aid and paramedic care – and coroners are not out to get you (December 1, 2018).

I have been sent a letter from a South Australian operator of retirement homes (not nursing homes).  They claim to provide ‘modern homes and resort-style leisure facilities for over-55s in safe and secure village environments.’ Their letter explains why they are not installing AEDs in their facilities.

In the following table, their stated reasons are in the first column and my response is in the second column.

A defibrillator provides a shock to the heart in a cardiac arrest to help the heart muscles regain normal rhythm. It cannot assist if the reason for the cardiac incident is for something else such as blocked arteries or an aneurysm. Fair enough, but so what.  That it can’t assist in every case doesn’t deny that it can assist in some.
A defibrillator is therefore not suitable for all types of heart attack and requires a level of judgement and skill to be exercised by a person using the defibrillator. My understanding is that is not correct.  AEDs are designed to be used by people without training.  It doesn’t require judgement as the machine determines if a shock is call for.
A defibrillator is a machine which lies idle most of the time and then has to work perfectly when required. Whilst we understand defibrillators are designed to automatically test itself at regular intervals, establishing and maintaining a rigorous maintenance schedule is required and we do not consider that this is appropriate for us or the residents’ committee to do so for reasons of potential liability explained later in this letter. It may be true that the machine requires some sort of inspection and maintenance.  The ‘reasons of potential liability’ are however not grounds not to have one, as discussed below.
If defibrillators were to be placed on the common areas, an expert assessment would need to be made as to how many defibrillators should be made available and where they should be made available, as the speed with which a defibrillator can be used is critical to the survival rate of the resident. We do not consider that this is appropriate for us or the residents’ committee to do so for reasons of potential liability explained later in this letter. That assessment is required now.  Under the model Work Health and Safety Act applicable in all states other than Victoria and Western Australia (and this provider is not in either Victoria or WA) a person conducting a business or undertaking is required to have first aid facilities and emergency procedures.  The first aid facilities are based on a risk assessment and compliance with the First Aid in the Workplace Code of Practice 2015 (see Work Health and Safety Act 2012 (SA) s 19 and Work Health and Safety Regulations 2012 (SA) rr 42 and 43.
Training in the operation of the device is essential. We have attached some pages from the Phillips Heart start brochure entitled ‘warnings and precautions’ which sets out some clear risks. For example applying pads to wet skin is a serious risk. No it’s not; that’s the point of them.  In any event a basic first aid course now includes training in the use of an AED.

Applying pads to wet skin may be a risk, but so is failing to use an AED to increase the chance of survival.

Even if comprehensive and regular training was available, there is no certainty that a trained person will be available to operate the defibrillator at the correct time. Fair enough, but so what.  That is also true with respect to a first aid kit.
We are concerned that residents who are suffering cognitive decline may attempt to use the defibrillator but their cognition prevents the resident using it correctly. My understanding is that if used incorrectly the defibrillator poses no risk as it will not deliver a shock. If it doesn’t deliver a shock that is no worse than not having it.  This is not a risk.
We are concerned that a well-intentioned attempt to use the defibrillator, may delay calling an ambulance with trained paramedics to the scene. I have no idea why they would have that concern.
We are concerned that if a defibrillator is used, and it fails to resuscitate the resident that this will cause anxiety and stress to the person using the defibrillator and observers of what has happened. Whereas what, doing CPR won’t?  Or perhaps seeing a person collapse and realising that there isn’t a defibrillator available won’t?  One has to say this is a ridiculous reason.

Legal Risks

The protections available under the Consent to Medical Treatment and Palliative Care Act 1995 to administer emergency medical treatment only apply to a qualified medical practitioner. The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13 does authorise emergency medical treatment by a medical practitioner, but that is not the only basis to authorise emergency medical care. If it was no-one else, not a first aider not SAAS could provide emergency care.

The common law of necessity justifies treatment such as CPR where a patient cannot communicate and the treatment is reasonable and in their best interests – see The doctrine of necessity – Explained (January 31, 2017).  If this service provider really believed that presumably they would never provide first aid to anyone in their facility.

If a resident has given the legal direction that they do not wish to be resuscitated in the event of a cardiac arrest, the use of defibrillators against that direction exposes us and the person using the defibrillator to legal action. Possibly, as noted here many times, treatment including life-saving treatment cannot be justified where it is contrary to the known wishes of the patient: In Re F [1990] 2 AC 1.   Presumably the facility has the means to record patient’s advance directives and it would be appropriate for staff not to resuscitate people in those circumstances.

But these are retirement homes not high dependency nursing homes.  As for other residents if they don’t know of a person’s wishes they can’t be expected to comply with them.

This risk applies equally to applying CPR or any other treatment.  It is something that a retirement village needs to consider but it is  an incredibly small risk.

Whilst residents may utilise what is known as the Good Samaritan defence from legal action, we are unable to utilise that defence. That is probably true.  The facility itself must owe a duty of care to its residents and it provides its services for a fee, it is not a good Samaritan (Civil Liability Act 1936 (SA) s 74). But that’s a reason to install an AED, not a reason not to.
Even if a resident could utilise the Good Samaritan defence, the resident must establish a number of criteria such as proving that he or she was not significantly impaired by alcohol or recreational drugs when administering the defibrillator. Also, the defence is exactly that and does not stop the claim being made against the resident. That’s not true in South Australia.  The Civil Liability Act 1936 (SA) s 74 does not say that it does not apply if the good Samaritan is affected by alcohol or drugs.

The chances of a claim being made are so small as could be described as ‘far fetched and fanciful’. There is greater risk of a claim being against the facility for not having an AED (explained below) than there would be a risk of a claim against a person for using one.

If a resident does not have public liability insurance, then the resident’s personal assets are exposed to a claim being successfully made against the resident. That is so far fetched and fanciful that it can be disregarded.  In any event anyone who has home contents insurance will have public liability cover.
The Good Samaritan defence is only available in relation to a claim for civil liability and would not be available to a resident who was criminally prosecuted for assault by the use of the defibrillator. But the common law defence of necessity will be.
There is no legal obligation on us to install or allow the installation of defibrillators on the common areas of our villages That’s a debatable point.  It’s true that there is no legal duty on most people to have an AED (see Making the installation of AED’s compulsory (September 27, 2015); Liability for failing to install an AED? (April 7, 2016) and Choosing not to install an AED for spurious reasons (September 10, 2018)).  But a retirement village is different.  First it is a workplace so it is required to consider the risk to those at the workplace including residents.  As noted above the Work Health and Safety legislation requires a risk assessment when it comes to deciding what are adequate first aid facilities and equipment – so issues of what first aid kit, how many first aiders and whether an AED is required.  That is a risk assessment that must take into account the fact that an over 55 retirement village has, by definition, a larger concentration of people over 55 than might be found in say a supermarket and there may be a higher risk that on any given day someone may suffer a cardiac arrest and would benefit from an AED.

The question becomes is it ‘reasonable’ to expect there to be an AED in place.  That in turn would require consideration of not only the First Aid Code of Conduct but what if anything is the industry standard.  What are other facilities doing?

As for a fear of liability imagine a social event in the facility and someone collapses and dies.  Their family discovers that there was no defibrillator present.  Putting aside difficulties of proving that a defibrillator would have made a difference, who are they more likely to complain about? The place that has one and tried or the one that didn’t?

Whilst there may not be a legislated obligation, work health and safety legislation has moved away from prescriptive rules to require a business to have appropriate facilities based on risk. Whether there is a legal obligation remains to be seen but it’s certainly arguable that the common law obligation to take reasonable care to avoid foreseeable harm to those to whom one owes a duty may require an over 55 residential facility to have access to an AED.

If a medical emergency such as cardiac arrest occurs in the village, the most appropriate approach is to immediately call an ambulance and let properly trained and equipped people deal with the situation. That is simply not true.  We know the chain of survival requires early access, early CPR, early defibrillation and then advanced care (!).  Simply standing back and waiting for an ambulance is not the most appropriate approach. It is inconsistent with first aid knowledge, it is inconsistent with the idea of building community resilience, it is inconsistent with the service provider’s duty of care to its residents and is wrong.

In my earlier post (First aid and paramedic care – and coroners are not out to get you (December 1, 2018)) I discussed the decision in the Inquest into the Death of Siauto Eliuta Tunumafono [2018] ACTCD 19. The expert in that case gave this evidence (emphasis added):

The cause of death was cardiac arrhythmia/arrest…  The expected prognosis from such an arrest depends heavily on the time to effective CPR and to defibrillation if indicated.  A 25 minute period in cardiac arrest without CPR is essentially unsurvivable regardless of initial rhythm or treatment.  A 10 minute period from arrest without effective CPR has a very low probability of a good neurological outcome.  A 5 minute period of good CPR commencing at arrest and terminated with effective defibrillation has a “good” prognosis with 50-75% achieving hospital discharge. 

Choosing not install AED’s because of fear of legal liability – because you think as a service provider it’s better to do nothing for your customers than do something – is an example of Choosing not to install an AED for spurious reasons (September 10, 2018).  To paraphrase my conclusion at the end of that earlier post:

… a [retirement community] should be thinking about what we should do that will provide the best service for our [residents], not how do we do the least possible.  Not installing an AED for fear that one somehow be liable if it’s used is ridiculous.  They are intended to be used by anyone…

It may be reasonable to choose not to install one on a cost-benefit basis, but it can’t be reasonable to choose not to install one for fear that ‘it will give rise to some additional duty of care that could wind up with them getting sued’.  It won’t.