Legal Status:
This section is adapted from current guidelines of the Resuscitation Council (UK) and is extracted from the following document, available online:
www.resus.org.uk/pages/legal.htm:
This section is adapted from current guidelines of the Resuscitation Council (UK) and is extracted from the following document, available online:
www.resus.org.uk/pages/legal.htm:
THE LEGAL STATUS OF THOSE WHO ATTEMPT RESUSCITATION
(OCTOBER 2007)
(OCTOBER 2007)
Many individuals, who are not employed medical professionals, who attempt resuscitation as a lay person to a casualty who is in a state of cardiac or respiratory arrest are concerned of the risk of having a legal claim instigated against them if the casualty suffers some form of harm as a result of the individual’s intervention. With the introduction of public and accessable advisory external defibrillators, AED’s, the concern has increased as more and more medical equipment, especially in the remote and diving setting becomes available to the individual rescuer who may not have had formal training in its use.
There is currently no legal precedent as to the harm that could be suffered as a consequence of a resuscitation attempt. This section will attempt to clarify the liability of an individual diver who decides to intervene in an emergency situation to carry out a life saving procedure.
Currently, there are two kinds of legal duty to which a UK citizen are subject. ‘Statutory Duties’ imposed by Parliament, and those within ‘Common Law’. At this time, there are no statutory duties pertaining to resuscitation and liability may arise at common law.
There have been a handful of cases within the UK where an individual claim has been brought against an ‘Individual Rescuer’, although there is no reported case where a casualty has ever succesfully sued someone who has aided them in an emergency.
In theory, a claim may be bought against a rescuer either in law or in trespass on the basis that the resuscitation attempt constituted an assault on the casualty, and/or in the law of negligence for a breach of the duty of care towards a casualty. There is also the potential for liability of assault under criminal law. A claim may be bought against an individual by the casualty if they survive, or in the event of their death by their estate. If actions of the rescuer led to serious personal injury or death, damages by way of compensation of a large amount could be theoretical ordered by the court.
In theory, a claim may be bought against a rescuer either in law or in trespass on the basis that the resuscitation attempt constituted an assault on the casualty, and/or in the law of negligence for a breach of the duty of care towards a casualty. There is also the potential for liability of assault under criminal law. A claim may be bought against an individual by the casualty if they survive, or in the event of their death by their estate. If actions of the rescuer led to serious personal injury or death, damages by way of compensation of a large amount could be theoretical ordered by the court.
The Claim of Trespass – Assault and Battery:
What is commonly referred to as an assault is in fact described as battery. Battery forms a trespass against an individual that is actionable. Such, that in order to bring a successful claim, the casualty, know victim, will have to demonstrate that there was actual harm. Battery is the ‘Infliction of unlawful personal force upon another’. Force can be as simple as light touching, if an individual has stated that their is no consent to an action.
Within the possibilities of this arising in resuscitation, the contact of applying AED pads could form a battery. However, when a casualty is unconscious, the application of ‘Implied Consent’ needs to be considered. The justification for this, is that a casualty were able to make a decision, they would consent to the procedure.
This defence is different from that of ‘Necessity’. This forms the principle that the treatment iven, without consent, is beneficial and in the best interests of the casualty – I.e. to save a life or prevent a deterioration in the condition of the casualty. Necessity forms an important defence when dealing with a ‘semi-conscious’ casualty, or a casualty who is rapidly deteriorating.
Both of these defences can be comfortably applied to the immediate care situation and resuscitation of an injured diver, where the immediate treatment to save a life is required in the pre-hospital situation. Limitations on the application of these defences when life saving procedures are carried out by lay individuals and non-professional rescuers; the less well trained the individual, the more difficult it is to justify a defence.
Within the possibilities of this arising in resuscitation, the contact of applying AED pads could form a battery. However, when a casualty is unconscious, the application of ‘Implied Consent’ needs to be considered. The justification for this, is that a casualty were able to make a decision, they would consent to the procedure.
This defence is different from that of ‘Necessity’. This forms the principle that the treatment iven, without consent, is beneficial and in the best interests of the casualty – I.e. to save a life or prevent a deterioration in the condition of the casualty. Necessity forms an important defence when dealing with a ‘semi-conscious’ casualty, or a casualty who is rapidly deteriorating.
Both of these defences can be comfortably applied to the immediate care situation and resuscitation of an injured diver, where the immediate treatment to save a life is required in the pre-hospital situation. Limitations on the application of these defences when life saving procedures are carried out by lay individuals and non-professional rescuers; the less well trained the individual, the more difficult it is to justify a defence.
It becomes a more difficult justification to argue that an unconscious person has implied consent to an untrained person performing what could be in effect a *medical procedure, even if it is a simple one. It could also be difficult to argue that treatment by a lay-person is in the best interest of the casualty. Given the simplicity of AED’s, the guidelines issued by governing bodies and authorative training organisations, a lay person is often justified in the resuscitation of a casualty in the pre-hospital setting when more qualified help is not immediately available.
*Oxygen Administration is a medical procedure, where Oxygen used in an emergency is classed as a Prescription Only Medicine (POM) in accordance with the Medicines Act 1968. Only individuals trained in accordance with current best clinical practice guidelines should administer medical grade Oxygen to a deteriorating casualty. The use of Diving Grade Oxygen for medical use is currently not authorised under this Act.
*Oxygen Administration is a medical procedure, where Oxygen used in an emergency is classed as a Prescription Only Medicine (POM) in accordance with the Medicines Act 1968. Only individuals trained in accordance with current best clinical practice guidelines should administer medical grade Oxygen to a deteriorating casualty. The use of Diving Grade Oxygen for medical use is currently not authorised under this Act.
A Claim for Negligence and the Duty of Care:
In order for a claim of negligence to succeed, an individual would have to show that the rescuer owed a duty of care and that that duty was breached, causing foreseeable injury or harm as a consequence.
In the United Kingdom, there is no general legal obligation for an individual lay-person to assist a person in need of resuscitation provided they are not the cause of the casualty requiring immediate care. However, in accordance with the Diving at Work Regulations 1997, Diving Instructors MUST provide a duty of care to students undergoing recreational and professional dive training, along with suitable Oxygen Resuscitation equipment being made available.
Many European Union countries have laws in which individuals under certain circumstances impose a duty of care to help others. For indiviudals undertaking the DELS Syllabus outside of the United Kingdom, local laws and legislation is to be followed in lieu of the regulations stated within the course training syllabus.
There are a limited number of situations where a court in the United Kingdom has found that a duty to protect another person exists. A simple method of testing this is to carefully look at your job description. In-water Dive Leaders, Dive Supervisors, Dive Masters and Instructors all have a duty of care to protect fellow divers and students alike.
Under the Health & Safety at Work Act 1974 and the subsequent 1981 Regulations, an employer is under statutory duty to provide adequate first aiders within a workplace. HSE First Aiders undergo training to the approved HSE standard in a specialist list of competencies. Any individual who takes on the role of a First Aider then they owe a duty of care to fellow employees under the aforementioned regualtions. It should be noted that this requirement is in addition to the training received from the DELS Syllabus and this syllabus training is NOT a substitution for training under the HSE 1981 regulations.
In the United Kingdom, there is no general legal obligation for an individual lay-person to assist a person in need of resuscitation provided they are not the cause of the casualty requiring immediate care. However, in accordance with the Diving at Work Regulations 1997, Diving Instructors MUST provide a duty of care to students undergoing recreational and professional dive training, along with suitable Oxygen Resuscitation equipment being made available.
Many European Union countries have laws in which individuals under certain circumstances impose a duty of care to help others. For indiviudals undertaking the DELS Syllabus outside of the United Kingdom, local laws and legislation is to be followed in lieu of the regulations stated within the course training syllabus.
There are a limited number of situations where a court in the United Kingdom has found that a duty to protect another person exists. A simple method of testing this is to carefully look at your job description. In-water Dive Leaders, Dive Supervisors, Dive Masters and Instructors all have a duty of care to protect fellow divers and students alike.
Under the Health & Safety at Work Act 1974 and the subsequent 1981 Regulations, an employer is under statutory duty to provide adequate first aiders within a workplace. HSE First Aiders undergo training to the approved HSE standard in a specialist list of competencies. Any individual who takes on the role of a First Aider then they owe a duty of care to fellow employees under the aforementioned regualtions. It should be noted that this requirement is in addition to the training received from the DELS Syllabus and this syllabus training is NOT a substitution for training under the HSE 1981 regulations.
Any individual who witnesses an emergency situation in the immediate care setting, where resuscitation may be required is under no obligation to provide resuscitation if the situation was not caused by the individual. However, if the individual offers help on a voluntary basis and intervenes, then a duty of care is automatically assumed towards the casualty concerned.
Intervention under a positive or assumed duty of care, any individual attempt at resuscitation can bring a claim against the individual rescuer if that person leaves the casualty in a worse state than if no resuscitation or immediate care had been carried out. Under these circumstances, it is incredibly difficult to see how a casualty could be left in a worse condition, as without immediate resuscitation the casualty will certainly die.
There are circumstances when it is easier to see how a casualty could be harmed by resuscitation attempts. Rescuers providing inadequate or wrongly placed chest compressions on a casualty who has a spontaneous and adequate circulation; the incorrect diagnosis of tension pneumothorax and the subsequent needle thoracocentesis. If you are unsure of what to do, or cannot justify the actions of your resuscitation attempt, then it is best not to carry on, but to seek professional medical advice. This can be difficult in the remote setting of SCUBA diving, but it should be noted that in the technological age of today, mobile telephones and VHF radios provide adequate links to emergency services and medical advice such as the Duty Diving Medical Officer services provided by the Institute of Naval Medicine and Aberdeen Royal Infirmary.
A claim for ‘Wrongful Life’, where a casualty has been successfully resuscitated but left in a permanent vegitative state is a rare situation where the family could argue that the casualty is in a worse state as a result of intervention. In the United Kingdom, legally and as a matter of public policy, this argument should not succeed.
The Standard of Care
If an individual casualty is able to show that a rescuer had a duty of care and that as a result of the intervention of the rescuer the casualty has been left in a worse position than would have been should the rescuer not have intervened, the casualty will still have to show that a standard of care that was employed by the rescuer in performing a resuscitation attempt was inadequate and it was for this reason that the casualty is now in a worse state.
The standards of care expected of a professional rescuer and that of a lay person or member of the public differ. Professional health-care professionals attempting resuscitation are expected to utilise the highest professional standards, compatible with their level of training. Competence is judged on an objective basis and individuals could be held liable if the standard of care falls below that expected of a similarly qualified professional.
Provided resuscitation procedures are performed correctly in accordance with current clinical practice guidelines such as those of the European Resuscitation Council, Resuscitation Council (UK) and the Manual of Core Material of the Royal College of Surgeons (Edinburgh), Faculty of Pre-hospital Care. Liability will only arise if procedures are carried out incorrectly and with disregard to the current accepeted practice.
Non-professionals who attempt resuscitation will not be expected to use the same standards of care as a health-care professional. Liability will only arise if the standards of care fall below that that is expected of a careful person. This means, practically, that if an action is bought against a non-professional the court would be likely to take into consideration the fact that the rescuer had a skill, but would also acknowledge the fact that the rescuer was a volunteer. If procedures are performed correctly and in accordance with current best clinical practice, it is unlikely successful that such a claim for negligence could be pursued.
When procedures are carried out incorrectly or with disregard for accepted practice, laibility could arise. Lay rescuers with no resuscitation training will only be considered negligent if an act is performed that a reasonable and prudent man in the same position would not have done, or omits to do something which the same person would have done. This standard is even lower than that of a non-professional rescuer.
In summary, a person who attempts resuscitation will only be liable for damages if negligent intervention directly causes injury. In the circumstances of resuscitation of a victim of sudden cardiac arrest, or mortal traumatic injury, the risk or incurring such liability is small. Liability of Third Parties There is a potential liability for organisations who train rescuers in resuscitation techniques, those who provide or maintain resuscitation equipment and those who administer the system under which rescuers operate.
In the United Kingdom, the Resuscitation Council (UK) publishes guidelines to assist those attempting resuscitation. In Europe, this falls under the remit of the European Resuscitation Council (ERC) and Internationally, the International Liason Committee on Resuscitation (ILCOR). Non-resuscitative, but immediate care procedures are published under the guidelines of the Joint Royal College Ambulance Liason Committee (JRCALC) Clinical Practice Guidelines and the Royal College of Surgeons (Edinburgh) Faculty of Pre-hospital Care Manual of Core Material. For the purposes of the DELS Syllabus, the training is based on the European Resuscitation Councils Guidelines and the RCSEd Faculty of Pre-hospital Care Manual of Core Material.
The standards of care expected of a professional rescuer and that of a lay person or member of the public differ. Professional health-care professionals attempting resuscitation are expected to utilise the highest professional standards, compatible with their level of training. Competence is judged on an objective basis and individuals could be held liable if the standard of care falls below that expected of a similarly qualified professional.
Provided resuscitation procedures are performed correctly in accordance with current clinical practice guidelines such as those of the European Resuscitation Council, Resuscitation Council (UK) and the Manual of Core Material of the Royal College of Surgeons (Edinburgh), Faculty of Pre-hospital Care. Liability will only arise if procedures are carried out incorrectly and with disregard to the current accepeted practice.
Non-professionals who attempt resuscitation will not be expected to use the same standards of care as a health-care professional. Liability will only arise if the standards of care fall below that that is expected of a careful person. This means, practically, that if an action is bought against a non-professional the court would be likely to take into consideration the fact that the rescuer had a skill, but would also acknowledge the fact that the rescuer was a volunteer. If procedures are performed correctly and in accordance with current best clinical practice, it is unlikely successful that such a claim for negligence could be pursued.
When procedures are carried out incorrectly or with disregard for accepted practice, laibility could arise. Lay rescuers with no resuscitation training will only be considered negligent if an act is performed that a reasonable and prudent man in the same position would not have done, or omits to do something which the same person would have done. This standard is even lower than that of a non-professional rescuer.
In summary, a person who attempts resuscitation will only be liable for damages if negligent intervention directly causes injury. In the circumstances of resuscitation of a victim of sudden cardiac arrest, or mortal traumatic injury, the risk or incurring such liability is small. Liability of Third Parties There is a potential liability for organisations who train rescuers in resuscitation techniques, those who provide or maintain resuscitation equipment and those who administer the system under which rescuers operate.
In the United Kingdom, the Resuscitation Council (UK) publishes guidelines to assist those attempting resuscitation. In Europe, this falls under the remit of the European Resuscitation Council (ERC) and Internationally, the International Liason Committee on Resuscitation (ILCOR). Non-resuscitative, but immediate care procedures are published under the guidelines of the Joint Royal College Ambulance Liason Committee (JRCALC) Clinical Practice Guidelines and the Royal College of Surgeons (Edinburgh) Faculty of Pre-hospital Care Manual of Core Material. For the purposes of the DELS Syllabus, the training is based on the European Resuscitation Councils Guidelines and the RCSEd Faculty of Pre-hospital Care Manual of Core Material.
Avoiding Liability:
There are two methods in which the personal liability may be minimised:
- Good Practice
- Adequate Indemnity Insurance
Good practice in this context simply means following the guidelines recommended by authorative bodies such as the Resuscitation Councils and the Faculty of Pre-hospital Care both in theory and practice, including training for providing resuscitation. Training should be up to date with recommendations about re-training for each resuscitation technique.
Equipment must be of a type recommended for a procedure for which it is designed and used and must be maintained in accordance with the manufacturers’ recommendations.
Indemnity often only covers individuals whilst they are in the employ of the organisation that holds the indemnity insurance, it may not extend to use of medical equipment, such as AEDs, off the premises of the employer. This is an important consideration for diving instructors untilising multiple dive sites for diver training. Instructors are likely to be covered by their employers’ insurance. It is incumbent on the instructor to ensure they are protected by providing the highest standard of training in accordance with accepted guidelines.
All organisations that teach resuscitation techniques, including the use of AED’s should ensure that there is appropriate and adequate insurance policies in place to cover the acts of their trainers and those trained by them. Simply, it would be extremely difficult to see how a casualty could successfully bring a claim against a rescuer, whether lay person or professional, who has provided immediate life saving procedures and resuscitation; if such a case was bought against an individual, then they must have acted in a grossly negligent fashion, acting outside the guidelines issued by the European Resuscitation Council and in the case of those individuals who are following the DELS Syllabus, outside the guidelines of the Faculty of Pre-hospital Care of the Royal College of Surgeons, Edinburgh.
The claim will fail if the procedure recommended was employed correctly by the rescuer and is accepted by a responsible body or medical opinion, even if the opinion is a minority. It is simply not enough to prove that another opinion exists that would take a contradictory view. This being the case, it is improbable that the standards listed above and the guidelines employed and taught could ever be successfully challenged in this manner.
This principle applies to bodies providing resuscitation training, such as the DELS Faculty and its Instructors. The DELS Syllabus, Faculty and Instructors owe a duty to train in a correct manner and will not breach this duty or drop the standards of the the Faculty of Pre-Hospital Care. DELS Instructors will NOT certify as competent an individual who is in fact not competent or safe in carrying out resuscitation procedures.
Any organisation who is responsible for maintaining medical equipment may be liable if it can be shown that maintenance and audit has led to a failure in approved standards and that an individual has suffered as a consequence of the the failure of that equipment. An area in which it is hard to provide guidance is the when an individual purchases medical equipment as a lay person or organisation outside a medically controlled system. Liability principles suggest that if it was used without appropriate training, then liability could arise.
Dive centres that hold medical supplies have a duty to ensure that all staff are safe and competent to use it as a part of their duties for which they are employed.
Equipment must be of a type recommended for a procedure for which it is designed and used and must be maintained in accordance with the manufacturers’ recommendations.
Indemnity often only covers individuals whilst they are in the employ of the organisation that holds the indemnity insurance, it may not extend to use of medical equipment, such as AEDs, off the premises of the employer. This is an important consideration for diving instructors untilising multiple dive sites for diver training. Instructors are likely to be covered by their employers’ insurance. It is incumbent on the instructor to ensure they are protected by providing the highest standard of training in accordance with accepted guidelines.
All organisations that teach resuscitation techniques, including the use of AED’s should ensure that there is appropriate and adequate insurance policies in place to cover the acts of their trainers and those trained by them. Simply, it would be extremely difficult to see how a casualty could successfully bring a claim against a rescuer, whether lay person or professional, who has provided immediate life saving procedures and resuscitation; if such a case was bought against an individual, then they must have acted in a grossly negligent fashion, acting outside the guidelines issued by the European Resuscitation Council and in the case of those individuals who are following the DELS Syllabus, outside the guidelines of the Faculty of Pre-hospital Care of the Royal College of Surgeons, Edinburgh.
The claim will fail if the procedure recommended was employed correctly by the rescuer and is accepted by a responsible body or medical opinion, even if the opinion is a minority. It is simply not enough to prove that another opinion exists that would take a contradictory view. This being the case, it is improbable that the standards listed above and the guidelines employed and taught could ever be successfully challenged in this manner.
This principle applies to bodies providing resuscitation training, such as the DELS Faculty and its Instructors. The DELS Syllabus, Faculty and Instructors owe a duty to train in a correct manner and will not breach this duty or drop the standards of the the Faculty of Pre-Hospital Care. DELS Instructors will NOT certify as competent an individual who is in fact not competent or safe in carrying out resuscitation procedures.
Any organisation who is responsible for maintaining medical equipment may be liable if it can be shown that maintenance and audit has led to a failure in approved standards and that an individual has suffered as a consequence of the the failure of that equipment. An area in which it is hard to provide guidance is the when an individual purchases medical equipment as a lay person or organisation outside a medically controlled system. Liability principles suggest that if it was used without appropriate training, then liability could arise.
Dive centres that hold medical supplies have a duty to ensure that all staff are safe and competent to use it as a part of their duties for which they are employed.
Clinical Governance:
Clinical Governance is defined as:“A system through which organisations are accountable for continuously improving the quality of their services and safeguarding high standards of care, by creating an environment in which clinical excellence will flourish.”
(Clinical Governance Support Team)
This definition was first seen in a consultation document written by the Department of Health in 1998, (A First Class Service: Quality in the NHS, 1998). Although [NHS] Clinical Governance does not play a large role in the application of immediate care and resuscitation by lay-individuals, rescuers need to be aware of the principles of working within a medical support model.
Essentially, there are 5 main principles of providing resuscitation and immediate care to the diving casualty:
- Establishing Baseline Observations and the diagnosis and treatment of life threatening injuries
- The administration of Emergency Oxygen
- Completion of Neurological Surveys
- Diagnosis and treatment of secondary injuries
- Suitable qualifications and training of the individual
Clinical excellence has already been discussed, in so much as it is the provision of appropriate medical care in a method recognised as the current accepted [clinical] practice standard. By following the guidelines of the authoritative bodies listed within this training syllabus, you are providing the most current and up to date immediate care for your casualty.
Bibliography & References:
A First Class Service: Quality in the NHS. Department of Health. 1998. HSC 1998/113, 1998.Clinical Governance Support Team. CG Glossary. Clinical Governance Support. [Online] [Cited: 19 June 2008.]
http://www.cgsupport.nhs.uk/About_CG/CG_Glossary.asp.