Duty to Offer Emergency Assistance

Case history

A Radiologist, Dr D, was stopped at a road junction when she was involved in a “near miss” car accident in April 2002 at around 6.30pm.¹Another vehicle travelling at an excessive speed had veered towards Dr D’s stationary car. She took evasive action by driving onto an embankment on the other side of the road. The second vehicle passed just behind her car, mounted the embankment on the other side and rolled into a ditch abutting the road.

Dr D and her passenger heard the noise of the impact but could no longer see the other vehicle. Dr D reported that she was in a state of shock and terrified as she thought she had almost been killed. It was dark, with no street lighting. Dr D had no torch, no mobile phone, no first aid kit and no medical equipment. At her passenger’s suggestion, she drove to the nearest police station and reported the incident.

Medical Tribunal decision

The matter came to the attention of the (then) Medical Board of Western Australia that Dr D may have been guilty of “infamous or improper conduct in a professional respect” as a consequence of her failure to stop and render assistance after the “near miss”. The Board submitted that Dr D’s conduct was sufficiently linked with the profession of medicine because she was aware of the possibility that another person may be in need of urgent medical treatment and, in these circumstances, a practitioner would be reasonably expected to employ their medical skills by rendering assistance.

The complaint proceeded to a State Administrative Tribunal of WA hearing 11 ½ years after the incident. At the hearing, the Medical Board of Australia submitted that “the practitioner was under a professional duty, as a medical practitioner, to stop and attend in circumstances where an injury might have occurred following the incident and that there is no competing or countervailing duty or obligation which might excuse the practitioner from not having done so”.

On 14 November 2013, the Tribunal handed down their decision and found Dr D guilty of improper conduct in a professional respect. In particular, the Tribunal found the following:

• “A medical practitioner’s conduct may be ‘in pursuit of the practitioner’s profession’ even where it does not occur in the carrying out of medical practice, provided that there is a sufficiently close link or nexus between the conduct and the profession of medicine.”
• The fact that Dr D was “in a state of shock”, “petrified” and “freaked out” after the incident did not excuse her professional duty as a doctor. Because she was a member of the medical profession and physically unharmed:

her professional duty required that she overcome or at least put aside the shock and provide assistance… Although the practitioner’s shock may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to the police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency.

Medico-legal issues associated with providing Good Samaritan assistance

1. What is the legal definition of a medical Good Samaritan?
A medical Good Samaritan is defined as a doctor who comes to the aid of an injured person, or person at risk of injury, with emergency medical assistance or advice, without expectation of payment or other reward, where a prior doctor-patient relationship does not exist.

2. Is a doctor obliged to offer assistance in an emergency situation?
Under common law, there is no legal duty on any individual, regardless of whether he or she is a doctor, to rescue where there is no prior relationship. However, there are some exceptions to the general presumption that there is no legal obligation to provide emergency aid as a Good Samaritan.

In the Northern Territory, Section 155 of the Criminal Code states:

Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for seven years.

In Australia, the conduct of doctors is regulated by the Health Practitioner Regulation National Law Act 2009 (the National Law). The definitions of “unprofessional conduct” and “professional misconduct” in the National Law do not include a specific reference to failure to render professional assistance to a person in need of urgent medical attention. However, the Health Practitioner Regulation National Law (NSW) defines “unsatisfactory professional conduct” for NSW medical practitioners as:

Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a medical practitioner if the practitioner has reasonable cause to believe the person is in need of urgent attention by a medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.

Professionally, the conduct of doctors practising in Australia is assessed in accordance with the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia.² Section 2.5 of the Code states:

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

Therefore, as highlighted by this WA Medical Tribunal decision, doctors may be subject to disciplinary action for failing to offer emergency assistance.

Conclusion

While this decision has caused considerable concern amongst the medical profession, it does not set a precedent that other courts must follow.

Importantly, if a doctor has “reasonable cause” not to offer Good Samaritan emergency assistance, then failing to offer urgent attention does not constitute unsatisfactory professional conduct. As outlined in the Code of Conduct, a doctor should take into account a range of issues, including their own safety, skills and the availability of other options when considering whether or not to offer emergency assistance.

Dr Sara Bird
Manager, Medico-legal and Advisory Services
MDA National

References
1. Medical Board of Australia and Dekker [2013] WASAT 182.
2. Medical Board of Australia. Good Medical Practice: A Code of Conduct for Doctors in Australia.
Available at: medicalboard.gov.au/codes-guidelines-policies.aspx.