03 Legal Issues in First Aid
The information provided in this chapter is a guide only. You should seek your own independent legal advice if you have any specific questions about legal issues with first aid procedures, or become involved in legal action. The four main issues to consider in first aid are:
- Obligation/Duty of Care
- Negligence
- Consent
- Recording
Obligation/Duty of Care:
An obligation means to take reasonable care to avoid causing foreseeable harm to another person or their property. The concept of obligation is well entrenched in the civil law of negligence, where plaintiffs claim that the defendant owed them a obligation on the basis that they were persons whom the defendant ought to have known might be injured by their conduct. Proving an obligation is the first necessary step of a negligence action. In many cases, it is accepted without doubt that an obligation is owed. For example, a clinician owes his or her patients an obligation; motorists owe fellow motorists an obligation. However, the limits of an obligation are not fixed and recent Australian cases have expanded it in a number of areas, including those of public health interest. For example, policies to prevent passive exposures to tobacco smoke have been strengthened by the fact that employers or occupiers of premises have an obligation to their employees or patrons to provide a safe environment and to ensure that that they are not so exposed.
Once you commence first aid treatment you have taken on an obligation to provide care and treatment that will not increase the risk to the casualty. You should continue to provide first aid once the treatment is started until:
- Someone with more qualifications arrives to help e.g. (ambulance ,doctor)
- Another first aider
- The casualty no longer requires treatment
- You are no longer capable of providing first aid
Negligence:
Negligence means there is a failure to take reasonable care to avoid foreseeable harm to another person or their property. A first aider is not considered a 'professional' in most cases. A court would look at the first aider's training and what a prudent and reasonable person would have done with the same level of training and in the same circumstances.
Example:
The first aider performs CPR on an elderly casualty who is in Cardiac Arrest. During the CPR the first aider breaks a rib. The first aider is successful in the resuscitation of the casualty. Sometime later the casualty decides to sue for the broken rib that was sustained.
A court would look at the facts:
- It is reasonable to expect that a first aider might break a rib while performing 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
- The outcome for the casualty would have been far worse than a broken rib if CPR was not performed
Consent
Before you start treating a casualty you should ask for and receive their consent for treatment. If the casualty is unable to give consent due to injuries (unconscious) you should assume consent and start treatment. If the casualty is a minor you should seek consent from a parent/guardian if present. If not present you can commence treatment.
Recording
A first aider should always make notes or fill out a first aid report on all events attended no matter how minor. This will help to remember the incident at a later time if required. If you are a first aider in a workplace your reporting obligations are greater under your State or Territories (OH&S) Occupational health and safety legislation. Notes/reports can be used in a court of law. Ensure they are accurate and factual, based on observations and not opinions. Some general guidelines:
- Use ink not a pencil
- Any corrections should have a line through and initialled
- Never use correction fluid or tape to correct mistakes
- Always sign and date the record
- The information is to be kept confidential and only accessible by authorised people
- Always record the casualty's name and address (if known)
- Time of incident
- What injuries or illness treated
- Any allergies known
- Any observations taken when completing the Primary and Secondary Survey
- Any other relevant information you may have observed