The information in this chapter is a guide only, and is provided to help first aiders understand the potential legal consequences of becoming involved in an incident. You should seek your own independent legal advice if you have any specific questions about legal issues associated with first aid procedures, or become involved in legal action.

There are four main legal considerations relating to first aid:

• Duty of care
• Negligence
• Consent
• Recording

Duty of care

“Duty of care” is a term used to describe the legal duty owed by one person to another to act in a certain way. As a first aider, you have a duty of care towards your casualties to exercise reasonable care and skill in providing first aid treatment. The duty arises because you have knowledge and skills relevant to a medical emergency situation. If you choose to provide first aid assistance, you have a duty to use your knowledge and skills in a responsible way.

The common law does not impose an automatic duty on first aiders to go to the aid of every casualty they come across. However, first aiders do have a duty to provide first aid assistance if they have voluntarily taken on the duty. For example, a nominated first aid officer in a workplace owes a duty of care to assist another person in the workplace.

A duty of care can also be imposed by legislation. For instance, legislation in some States says that staff in childcare centres must provide immediate medical aid to a child who becomes ill or is injured. Further, in the Northern Territory, the Criminal Code makes it a criminal offence for a person who is able to do so, to ‘callously fail’ to provide first aid to a person urgently in need and whose life may be endangered. The penalty for the offence is up to seven years imprisonment.

Once you commence first aid treatment of a casualty you do take on a duty of care to provide first aid with reasonable skill and care and to ensure that your actions do not increase the risk to the casualty.

You should continue to provide first aid once this treatment has begun, until:

• someone with more qualifications than you (such as an ambulance officer or doctor) relieves you
• another first aider relieves you
• the casualty no longer requires first aid
• you become incapable of continuing to provide first aid

Negligence

In the unlikely event that a first aider is sued in connection with providing first aid assistance, the courts would look at the circumstances surrounding the event to see if the first aider acted negligently in the way the first aid was provided. The following factors must be present for a first aider to be found negligent:

1. A duty of care existed between the first aider and the casualty; and
2. The first aider did not exercise reasonable care and skill in providing the first aid; and
3. The casualty sustained damage; and
4. The casualty’s damage was caused by the first aider.

A first aider is not considered a ‘professional’ in most cases. A court would look at the first aiders training and at what a prudent and reasonable person would have done with the same level of training in the same circumstances. Due to the public benefits of encouraging people to come to the assistance of others, it is likely that the Australian courts would adopt the position that first aiders would only be liable if it can be shown that their behaviour was grossly negligent and would take account of all the circumstances of the event.

The court may examine issues to establish whether the first aider exercised reasonable care:

• What was the first aiders level of knowledge?
• What information was available for the first aider, including:
  • Was adequate questioning used?
  • Was a thorough examination of the casualty undertaken?
  • Were all the facts available taken into account?
  • Were accepted first aid procedures complied with?
  • What were the circumstances in which the first aider provided assistance

Example:

A first aider gives CPR to a casualty in Cardiac Arrest. During this CPR a rib is broken. The resuscitation is successful and after the event the casualty decides to sue for the broken rib sustained.

The court would look at the facts and may decide that:

• it is reasonable to expect that a first aider might break a casualty’s rib whilst delivering CPR to save the casualty’s life
• the first aider acted with reasonable care and skill
• the first aider was not negligent in providing CPR in this way

the outcome for the casualty of not performing CPR could have been far worse than suffering a broken rib

Consent

Before you start treating a casualty you should ask for and receive the casualty’s consent to your treatment. If the casualty is unconscious, or is unable to give consent due to their injuries, you can assume consent and commence treatment. If the casualty is under 18 years old, then you should seek consent from a parent or guardian. If a parent or guardian is not present, you can commence treatment.

You should not commence treatment if an adult, who seems to be of sound mind and able to make a decision, refuses your offer of treatment.

You only have the casualty’s consent to treat them for a condition that affects their immediate health. You should not provide help in relation to any ailment that goes beyond your knowledge of first aid.

Recording

First aiders should always make notes or fill out a casualty report on any event attended, no matter how minor. Proper records will help you to recall the incident if you are ever asked about it at a later stage. The responsibility is greater if you have a role as a first aider in your workplace, and you may have reporting obligations under your State or Territory occupational health and safety (‘OH&S’) legislation. You can check this with your workplace OH&S representative.

Records may be used in a court, so ensure that your report or notes are accurate, factual, contain all relevant information, and are based on observations rather than opinions.

When preparing a report some general guidelines should be followed:

• Use ink only.
• Any corrections should be crossed out with a single line and initialled.
• Do not use correction fluid to correct any mistakes.
• Sign and date the record.
• The information should be kept confidential, and access should only limited to authorised people. Those authorised to access the records varies in different State or Territories.

In a workplace incident, a copy should be also given to authorised employer representatives for auditing and OH&S monitoring purposes.

Confidentiality

Personal information about the health of a worker is confidential. This information includes details of treatment provided, medical conditions, and the results of any tests. Any disclosure of personal information, without the worker’s written consent, is unethical and may be illegal. First aiders should not be asked to disclose personal information about the health and wellbeing of a worker.

It is also important to remember that having others know intimate details about a casualty’s life may mean a loss of dignity and autonomy for the casualty.