Today’s correspondent:

… recently started volunteering with Melbourne Street medics who attend rallies in the city to provide first aid. The group is a bunch of volunteers who have first aid training, wear green vests [see photo below, supplied], and have been trained on decontamination of pepper spray. There is no formal organization or contract to provide care, it is all organized in a group chat and we all just turn up.

A recent discussion came up regarding providing care to counter protesters, and what obligation you would have (if any). Traditionally you wouldn’t have a Duty of Care as you are just a bystander. I believe that as you are putting on a green vest and identifying as a medic, that would change, and you would have a Duty of Care, despite the lack of formal contact

One can infer that the group is not ‘medics who attend rallies in the city to provide first aid’ for everyone, rather they are ‘medics who attend rallies … to provide first aid to supporters of a particular cause’.  If that were not the case the issue of ‘counter protestors’ would not arise nor would the issue of who to treat. If they were there with the express intent of providing first aid at the rally it would be for everyone there.

But that’s fine.  If someone is organising a rally then people who support that cause are allowed to go and express their support.  And if some of them want to identify as being trained in first aid and are part of that rally they can provide first aid to those on the side they support, in the same way that marshals will be there to marshal their side of the rally, not any counter protestors.  And it is highly appropriate for anyone organising such an event to think about the provision of first aid and security services as part of the event organisation.

So does that give rise to a duty of care to others, particularly in the context of ‘no formal organization or contract to provide care, it is all organized in a group chat and we all just turn up’?  I don’t think so.

Mere foreseeability that someone may get injured or that someone who is injured would benefit from first aid is not sufficient to give rise to a duty of care.  Stuart v Kirkland-Veenstra [2009] HCA 15 confirmed that there is no duty to come to the rescue of others. In that case there was discussion that organisations, such as police, may have special statutory powers and duties that could give rise to a duty to exercise those powers or perform those duties but that cannot be relevant here.

The ‘counter-protestors’ could not argue that they had any reasonable reliance on the ‘Melbourne Street medics’ unless there was a meeting between potential protest groups and police to plan the day and one side said ‘well have first aiders there, to look after everyone’.  And the first aiders are presumably turning out because a cause they support is organising the event. It might be different if they really were a-political and decided to set up a first aid post in Federation Square simply because they knew there would be a crowd there or because they were there every weekend and the protest just happened to be there – but to repeat what I said before – if that were the case the concept of a ‘counter-protest’ would not be relevant as they would not be there to support one side, over the other.

An employer has to have arrangements in place for first aid at the workplace (WorkSafe Victoria Compliance code: First aid in the workplace (2021)).  It would not be reasonable for one employer to say ‘My business is co-located with other businesses and one of them has a first aider so I’m just going to rely on that person’.  That would not impose a duty on the second business to provide first aid services to the first nor relieve the first employer of their obligations.  By analogy, the fact that one side of a rally has first aiders would not impose a duty on those people to render care to the ‘other’ side.

Justice is a fundamental principle of bioethics and health care codes of practice. We would expect Ambulance Victoria as well as the staff of the public hospitals to treat anyone who comes to them based solely on their clinical need and without regard to the side of the protest they were supporting.  There is the ethical issue of whether a first aider should walk past a person who they may be able to assist but that would not, in this context, give rise to a legal duty.   In extreme cases, such as cardiac arrest, one would hope that anyone would stop and assist if they could, regardless of the person’s stance on any issue, but that would not give rise to a legal duty on a person with a first aid certificate just because they had a first aid certificate.

Even if there is a duty, the duty is to only do what is reasonable.  Before a person could or should assist, regard must be had to the nature of the event. It may not be safe for someone who clearly identifies with one cause to become ‘embedded’ in the ‘other side’.  If you’re protesting for trans-rights, you may rightly be uncomfortable and unsafe stopping to assist a balaclava wearing, Nazi-saluting counter protestor.  Equally if the first aiders are there as part of the anti-drag story time protest at the local library, they may not feel comfortable or safe trying to provide care to the local drag queen and her supporters.

Finally in any legal action in negligence a plaintiff has to prove the breach of duty caused damage. If a person has been sprayed with OC it is the OC that is causing their damage, not the action of the first aider. Failing to stop does not make the situation worse, it fails to make it better and there is, to return to where we started, generally no duty to do that.  Also the protest first aid group are not the only people who can assist. The protestors will be assisted by police and can be assisted by Ambulance Victoria and people in their own group.  There is no reasonable grounds to rely on the volunteers and they are not the best placed to provide the care required.

Conclusion

There is no duty to rescue. A group of people who identify that they have first aid training and who turn out clearly in support of, and as part of a particular group would not be under a legal duty to come to the aid of others who are clearly opposed to their event in the dynamic circumstances of an ongoing protest and were stopping to assist may not be safe.

It could be different if they were clearly members of an a-political organisation that really was there to provide care to everyone.

There may be ethical issues and one has to live with oneself particularly if you are planning to walk past a person who asks for help or who you think may die without help, but ethical issues do not always translate to legal duties.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.