First Aid & The Law Part 1 - Duty of Care

3rd September 2009 updated 12th December 2015 and 30th April 2018

One of the most common questions we receive is "Will I get sued if I give first aid to a casualty?"  

This is a reasonable question given the increasingly litigious world we live in.  The following article provides some of the important factors that must be considered to protect not only the casualty but also yourself.

Terminology

Duty of Care 

A duty of care is a legal obligation set on an individual requiring that they conform to a standard of reasonable care while performing any acts that could foreseeably harm others.  It is the first element that must be established to proceed with an action in negligence.

Reasonable care – or the actions of a reasonable person - is a legal basis of Common Law representing an objective standard against which any individual's conduct can be measured.  It is used to determine if a breach of the standard of care has occurred, provided a duty of care can be proven.

What is important to remember is that ones actions would be judged against those of a reasonable person of the same standing in a similar situation; the actions of a First Aider would therefore only be judged against those of someone of similar training and experience, not against the actions or decisions of a paramedic or doctor.

Negligence

Negligence exists when a person breaches their duty of care owed to another through an act or omission which results in an injury or a loss.  This is not the same as carelessness because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. 

Common Law

Also known as case law or precedent, is law developed through previous cases by judges and through decisions of courts and similar tribunals rather than through legislative statutes.

Statutory Law

Statute law is written law set down by a legislature, as opposed to Common Law.

Duty of Care and the First Aider (1)

For a First Aider nominated in the workplace the situation may be different from those who are simply bystanders as it could be argued that they have assumed a heightened duty of care.  

Under the Health and Safety at Work Act 1974 and the subsequent Health and Safety (First Aid) Regulations 1981, an employer is under a statutory duty to provide first-aiders in the workplace for the benefit of their  employees.  These first-aiders must undergo training to an approved standard in a specified list of competencies.  As such, an individual who takes on this role as part of their job description could be argued to owe a duty of care to their fellow employees to render first aid. 

A person, whether a healthcare professional or a member of the lay public, who witnesses a  situation ‘in the street’ where life-saving First Aid might be required is under no obligation to assist, provided the situation was not caused by that person.  However, if that person does choose voluntarily to intervene to render assistance they will assume a duty of care towards the individual concerned.  By starting treatment you are accepting a responsibility to the care of that person. 

Rule 1:  Only treat if you are willing and able to do so.

Whilst there is no law that forces anyone to treat a casualty this does not mean that one can simply leave a casualty who you know is in danger.  To do so may make you liable through your omission to act.   If you are not happy to provide First Aid treatment in the 'classic' sense there are several things you can and should do including (but not limited to): 

• Inform someone else, such as 999 if it is an emergency.

• Make the area around the casualty safe for yourself, others and the casualty.

• Monitor the casualty and/or find out what happened.

• Comfort the casualty.

These are examples of simple but important actions that can be done without 'getting your hands dirty'.

What if I injure the casualty?

A person who administers First Aid will only be liable for damages if negligent intervention directly causes injury which would not otherwise have occurred, or if it exacerbates an injury.(1)  

If First Aid is administered inappropriately or negligently and a consequential injury can be proved to have arisen from that procedure, a First Aider may be held liable for substantial damages if the standard of care he employed fell below that which could be expected of him in the given circumstances.  This applies whether they are a healthcare professional, a non-professional volunteer first-aider, or simply an unskilled member of the general public. (1)

For example, if a person inappropriately administered chest compressions where a casualty was not in cardiac arrest, which caused damage to the chest wall or underlying organs, they would be causing damage which would not otherwise have been suffered and, given that the casualty was not in need of emergency resuscitation, would by his intervention be leaving them in a worse position. 

If, however, CPR is performed on a casualty in cardiac arrest, It is difficult to see how a persons intervention could leave someone worse off since a victim would, without immediate resuscitation, certainly die.  Furthermore, if an AED is being used, it will only permit the administration of a defibrillatory shock when it detects a shockable rhythm and, since patients in this state are clinically dead, it is unlikely that any intervention with this device could make the situation worse. 

Attending an accredited First Aid training course not only provides you with life saving skills but skills, knowledge and understanding of current best practice.  A First Aid certificate is not a 'licence to treat' but it demonstrates that the candidate, at the time of the course, was able to perform tasks to a nationally recognised standard.  By treating a casualty to these standards you are protecting yourself against a claim of negligence.

To treat a casualty in a way that goes against the training you have received or to treat a casualty using techniques you have not been trained in but have 'seen it on the telly' exposes you to a claim for negligence.

Rule 2 – Only treat in the manner you have been trained.

Consent

Under UK law any form of physical touch without consent could be interpreted as common assault. (although is more accurately described as 'battery' in England and Wales or 'wrongful interference with the person' in Scotland).  Practically this is unlikely to lead to a conviction if - for example - a First Aider were to hold the hand of a casualty to reassure them, without first gaining consent.   A conviction could be made if the First Aider were to use any form of force against the casualty to administer treatment.

Further Reading:  British Medical Association - Consent

Under the Mental Capacity Act (2005) (2) a person is presumed to have the mental capacity to make their own decisions unless proved otherwise.  On the basis that the casualty has the capacity to choose to refuse treatment, this must be respected.  It is important that the casualty is not coerced or pressured into accepting treatment, rather they are helped to make an informed decision: 

• Can the casualty self-treat?  Do you need to be involved in the treatment?

• If the casualty does not want you to treat them, will the casualty accept treatment from someone else?

• Is the casualty aware of the seriousness of their injury or condition?

Further Reading:  British Medical Association - Mental Capacity
 

How do I know if they have the mental capacity to make a decision?

The criteria set out by Section 3(1) the Act for a casualty to consent / reuse treatment is that they can:

• Understand the information relevant to the decision

• Retain the information long enough to make a decision

• Weigh the information and make a decision

• Communicate the decision

But what if the casualty does not want to be treated?

This situation is not as strange as it may seem; there are several reasons why a casualty, even with serious injuries may not want you to treat them. 

• It may be that they don't want you to treat them, but they might want someone else.  

• Is there personal history between you and the casualty?

• Is there a gender issue?

• Is the casualty suffering with a personal or embarrassing issue?

• Is there a lack of trust?   Could this be how you presented yourself?

• Is the injury or condition self-inflicted and the casualty is refusing treatment from anyone?

What if they are unconscious?

If a casualty is unconscious and therefore unable to consent – or indeed they had refused consent and then became unconscious – you are permitted to undertake treatment that is only required for the purpose of saving life.  You are not permitted to undertake non-life threatening treatment, such as treating minor injuries.  

Section 5 of the Act applies in connection with the care or treatment of another person.  If a casualty is found unconscious - and therefore their mental capacity cannot be assessed nor can the casualty express refusal of treatment - it is suggested that a First Aider who administers life saving actions should not incur any liability in relation to their actions (that he would not have incurred if the casualty had capacity to consent and  had consented to treatment) providing that:

1. before performing a procedure the First Aider takes reasonable steps to establish whether the casualty lacks capacity in relation to the matter in question and 

2. when performing the act reasonably believes that the casualty lacks capacity in relation to the matter and 

3. that it will be in the casualty’s best interests for the act to be performed

Is this "implied consent"?

No.   It is often stated that there is implied consent when the casualty is unconscious - the unconscious casualty has not implied anything!   Implied consent is non-verbal agreement; for example if you ask "Do you mind if I examine your wound?" and the casualty holds their injured hand out towards you without saying anything, their action of allowing you to get closer to their injury assumes that they consent.

The best interest of the casualty is usually doing as little as you need to, rather than as much as you can.  This is true whether the casualty accepts or refuses your treatment.

Rule 3 – Act in the best interest of the casualty.

Advanced Decisions

What is a 'Living Will'?

A Living Will or, more accurately, an Advanced Decision allows a person over 18 years to refuse specified medical treatment for a time in the future when they might nor have the mental capacity to consent or refuse to that treatment.

Advanced Notices are commonly used where a patient with a known or predicted medical condition sets out their wishes – while they have the capacity to do so – regarding future treatment.  Typically this may be that an patient with a degenerative health problem may request that should they suffer a cardiac arrest, they are not resuscitated.

For a patient to refuse life sustaining treatment, the Advance Notice must be:

• be in writing (it can be written by someone else or recorded in healthcare notes);

• be signed and witnessed; and

• state clearly that the decision applies even if life is at risk.

In terms of a First Aider responding to a life threatening situation it is unreasonable to assume they would be aware of this written document.   It may be that a person known to the casualty attempts to prevent the treatment of First Aid if the casualty has made an Advanced Notice.  Again, it is difficult and unreasonable  for the First Aider to make a judgement about the validity of this claim.

Should any bystander attempt to prevent life-saving treatment of the casualty, the emergency services should be called as paramedics and other healthcare professionals can – in certain circumstances –  provide life saving treatment without or against consent. 

Further reading:  NHS - Advance Decisions

Children

In the ordinary course of events, of a the parents' of a child (a person under 16 years) would either refuse or consent to treatment of a child.  If a child required life-saving First Aid and the parents refused consent, it would be difficult to assume implied consent.  Doctors and other healthcare professionals are, again, afforded the ability to make decisions regarding life-saving treatment against the wishes of the casualty on the basis of necessity.  Whether this is afforded to a First Aider is legally unclear. 

Can someone refuse treatment on behalf of someone else?   

No one can refuse Life-Saving treatment on behalf of a capable adult or child over 16.  

Summary

Rule 1:  Only treat if you are willing and able to do so

Rule 2:  Only treat in the manner in which you have been trained

Rule 3:  Act in the best interest of the casualty

Examples:

1.  Do I move an unconscious casualty, who isn't breathing if they have a suspected spinal injury?  

This dilemma is frequently perpetuated on TV or even in reality (if you have ever been unlucky enough to be at the scene of a car crash) when bystanders scream "Don't move them! They might have a neck injury!"

Remember the 3 Rules:

1. If you are willing to treat the casualty, being aware of the seriousness of the situation and confident in your abilities, then proceed.

2. Opening the airway in the manner in which you have been trained limits the potential damage to a spinal injury.

3. This is a life saving procedure which is in the best interest of the casualty.   

It may be that the casualty has a spinal injury and you might make it worse by opening the airway but an unconscious casualty – especially if on their back – cannot maintain their own airway.  If their airway is blocked s they will not be able to breathe and this take priority over any injury.   If you have treated the casualty in line with your training it is therefore unlikely a claim will be made against you.

2.  Am I liable if I break someone's ribs when performing CPR?

Remember the 3 Rules

1. If you are willing to treat the casualty, being aware of the seriousness of the situation and confident in your abilities, then proceed.

2. Performing CPR is a skill which needs to be taught to be effective.  Performing CPR as you have been trained will protect you to a greater extent than violently or haphazardly  'jumping on someone's chest' because that is your interpretation of how it should be done.

3. Whilst a broken rib is undesirable, for a casualty who is not breathing and assumed to have suffered a heart attack, it is largely irrelevant.   Following a call to 999 and locating a defibrillator (if there is one available), perfusion of oxygenated blood to the vital organs through effective CPR is in the best interest of the casualty.

It is certainly possible that a rib can be broken whilst performing CPR, even if trained and practised to the best standards.   A broken rib is not a priority of a casualty in this situation.  Because of these two factors it is unlikely that claim would be brought against you. 

Next Article - Can I be sued?
 

References

1. Resuscitation Council UK (2017)  "CPR, AEDs and the Law".   The Resuscitation Council (UK). London.  https://www.resus.org.uk/library/publications/publication-cpr-aeds-and-law  Accessed 12th December 2015.

2. Mental Capacity Act (2005)  Accessed 12th December 2015.

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