19 Jul FIRST AID: DUTY OF CARE AND THE LAW PART 2
FIRST AID: DUTY OF CARE AND THE LAW
I always tell my students that if they are faced with an emergency at work, home or out and about, they must act and treat a potential casualty or victim in the manner that they have been trained.
So now the controversial question must be asked:
‘What if the victim/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 and these are as follows;
- They do not want you to treat them, but they might want someone else to
- Is there personal history between you and the casualty?
- Is there a religious, gender or cultural issue?
- Is the casualty suffering with a personal or embarrassing issue?
- Is there a lack of trust? It may be associated with how you presented yourself?
- Is the injury or condition self-inflicted and the casualty is refusing treatment from anyone?
Under UK law, any form of physical touch, without consent could be interpreted as ‘Common Assault’. (Although, this is more accurately described as ‘Battery’ in England and Wales or as ‘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 asking. A conviction could be made, if the First Aider were to use any form of force against the casualty, to administer treatment or to sexually molest them, whilst attempting to treat them.
Under the Mental Capacities Act (2005), a person is presumed to have the mental capacity to make his or her own decisions, unless proved otherwise. On the basis that the casualty has the capacity to choose to refuse treatment, the First Aider must respect this. It is important that the casualty is not coerced or pressured into accepting treatment; rather they are helped to make an informed decision.
The next question to ask is:
‘What if the casualty or victim is unconscious & breathing?’
If a casualty is unconscious & breathing and therefore unable to consent or had previously refused consent and then became unconscious, then you are permitted to undertake treatment that is only required for the purpose of ‘Saving their Life’. This is termed ‘Implied Consent’. 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, the law suggests that a First Aider, who administers lifesaving actions, should not incur any liability in relation to their actions, providing that the following points are adhered to:
Before performing any procedure, the First Aider takes reasonable steps to establish whether the casualty lacks capacity in relation to the matter in question and when performing the act reasonably, believes that the casualty lacks capacity in relation to the matter and that it will be in the casualty’s best interests for the act to be performed.
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.
I explain to my First Aid students that they should act in the ‘Best interest of the casualty’. It must also be noted here that nobody can refuse Life-Saving treatment on behalf of a capable adult or child over 16. It must be mentioned here that if someone has a ‘Living Will’, there are Advanced Notices, which 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 a patient with a degenerative health problem, may request that should they suffer a Cardiac Arrest, they are not to be resuscitated with CPR.
For a patient to refuse life-sustaining treatment, the Advance Notice must be:
- In writing (it can be written by someone else or recorded in healthcare notes);
- Signed and witnessed; and
- Stated 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 that they would be aware of this ‘Living Will’, which would be a ‘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 lifesaving treatment without or against consent.
With regards to children (under 16 years of age), in the ordinary course of events the parents’ of a child 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 the First Aider is legally unclear, so therefore, I always say that no two people are the same and no two First Aid scenarios are the same, which makes every case unique in its approach and management.
Now the million-dollar question is:
‘What would happen if I am sued?’
To begin with, seek professional, legal advice from your solicitor and/or your Union representative, because each case is examined individually and it is not possible to provide definitive guidance here in this Blog. However, the great benefit of the legal system in this country is that one’s actions are measured against ‘those of a reasonable person of the same standing’. This means that your actions would be compared against those of another First Aider in the same situation. You would not be expected to perform in the same way, or be measured against the actions of a paramedic or a doctor.
If the casualty has experienced damage or loss (i.e. an injury or loss of limb), they may attempt to make a claim against you. If the casualty dies, the claim may come from their family.
The picture below illustrates what is termed the ‘Recovery Position’, which is indicated when the victim is unconscious and breathing. This is a very important position to place the casualty in, because it encourages continuous breathing and also if they vomit or are sick, it will not choke them. The Recovery Position is taught in the practical session of the One Day Emergency First Aid at Work (EFAW) Course and is essential to ensure the casualty is breathing and preventing the tongue from blocking their airway, causing death.
THE RECOVERY POSITION (Victim Unconscious & Breathing)