What are the legal expectations for a nurse who comes across an accident when not at work?
A while ago this question was posted on my facebook page:
“I’m a new grad nurse and I’m just trying to find any information/policy/legislation relating to registered nurses and stopping at car accidents. I saw an accident on my way to work and was under the impression that because I was in uniform I had to stop. But some colleagues have agreed that I had to while others have said that by stopping I have left myself open to legal action should the patient not fully recover. Everyone seems to have their own opinion or theory that they’ve heard so I was hoping get someone would be able to point me in the direction of some hard evidence.”
Turns out this question made its way circuitously to the attention of Michael Eburn who is Associate Professor at the ANU College of Law at the Australian National University. Michael is an academic researcher with a particular interest in legal issues affecting the emergency services (ie. fire, ambulance and rescue services) in Australia.
In response he wrote a post on his website, Australian Emergency Law, to look at this very issue.
A person who steps forward to offer assistance in an emergency without any expectation of being paid is known as a Good Samaritan.
Each state in Australia has its own Good Samaritan legislation, although they are all fairly consistent.
the general rule is that one doesn’t have to go and help in an emergency but there is an expectation that health professionals will render assistance when they are aware that assistance is required. In the right circumstances failure to do so may lead to civil liability or professional discipline. Civil liability would not apply to a nurse on his or her way home from work, but it may to a nurse say traveling in car marked ‘home nursing service’ where someone flags them down and asks to assist.
And if you do go and render medical aid and there is a negative outcome, are you leaving yourself open to legal actions?
If one does stop then the common law would require you to act as the reasonable person with the same skills and training, the reasonable nurse, the reasonable paramedic etc. That is not a guarantee of good outcomes so it is not the case that you leave yourself ‘open to legal action should the patient not fully recover’. Your duty, at best, is not to make the situation worse than if you had not been there at all
But what about getting sued?
Any fear of legal liability from stopping to assist at an accident is an over reaction to common myths. No medical professional (or anyone else) has been sued in these circumstances (though one has been sued, and one disciplined for not providing assistance). At any accident it will be easier and more productive for the injured person to sue the person who caused the accident, not their rescuer. The law has said [that where] there is negligence by the rescuer the person who originally caused that accident is liable for the entire damage. Further when assessing whether or not a rescuer, whether a nurse, a doctor or a layperson, was negligent all the circumstances must be taken into account. The circumstances include the urgent and unusual nature of emergencies even for health practitioners (at least those that are not usually providing road side emergency assistance).
Is there a duty to attend? For health professionals there may be taking into account all the circumstances, but at least if they are asked in a professional capacity whilst at work.
Will you be liable if you do and the patient does ‘not fully recover’? No, liability could only begin to be an issue if you make the situation worse so that the person would actually have been better off if you had not turned up at all.
What is the standard of care? Where the good Samaritan statutes apply, the relevant test is ‘did you act in good faith?’, otherwise it’s ‘was your conduct reasonable in the circumstances’? which includes the circumstances of the emergency.
Remember: No-one has ever been sued for rendering good faith, voluntary emergency care at an accident side.
If you are interested in reading more on this topic go and read Michaels full response here.