Dodge, a regular contributor to this blog, e-mailed me and asked me a question regarding criminal law issues in patient care and in particular the ss 304(1) and (2) of the West Australian Criminal Code that is set out in the Criminal Code Compilation Act 1913 (WA). He asked

‘… firstly could it be plausible for an ambulance officer/paramedic to face charges under these sections for any act/omission that causes bodily harm or endangers the life, health or safety of a person.

Secondly could someone face charges under s 304 (3) (f) if they hinder a ambulance officer/paramedic from performing their duty and that hindrance brings about bodily harm or  endangers the life, health or safety of the patient that they are treating.’

Section 304 of the Criminal Code (WA) says:

304. Acts or omissions causing bodily harm or danger

(1) If a person omits to do any act that it is the person’s duty to do, or unlawfully does any act, as a result of which —

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.

(2) If a person, with an intent to harm, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

(3) For the purposes of subsection (2) an intent to harm is an intent to —

(a) unlawfully cause bodily harm to any person; or

(b) unlawfully endanger the life, health or safety of, any person; or

(c) induce any person to deliver property to another person; or

(d) gain a benefit, pecuniary or otherwise, for any person; or

(e) cause a detriment, pecuniary or otherwise, to any person; or

(f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(g) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.

There is no liability for injury caused by accident or during a reasonable response to an emergency (Criminal Code, ss 23B and 25).

A paramedic, like anyone, could face charges under this section if the elements can be established, but it’s hard to imagine how that might arise in normal paramedic practice.  ‘Bodily harm’ is defined as ‘any bodily injury which interferes with health or comfort’.   It’s hard to imagine a paramedic inflicting ‘bodily harm’ in their daily practice.

An example may be where a paramedic is called upon to amputate a limb to rescue a person from certain death (as was reported in the aftermath of the Christchurch earthquake) but it would be argued that such an action supported or advanced health and comfort rather than interfering with health or comfort.

It has to be noted however that the Act doesn’t refer to simply causing harm, but failing to do something that the person is duty bound to do or unlawfully doing some act that causes the harm.  The example I’ve given above is not an omission nor would it be unlawful if it was done with consent or in accordance with appropriate practice and it was necessary and in the patient’s best interests.

A paramedic who negligently causes an injury or fails to properly treat a patient is not failing to perform their duty, though they may be performing their duty negligently.  It is unlikely such action would be caught by this section.

As for the second question ‘could someone face charges under s 304 (3) (f) if they hinder a ambulance officer/paramedic from performing their duty and that hindrance brings about bodily harm or  endangers the life, health or safety of the patient that they are treating.’

Yes I think they could.  The relevant offence is in s 304(2).  It says

(2) If a person, with an intent to harm, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

This is the same as s 304(1) save that for this section an intent to harm must be proved.  Naturally if one omits to do one’s duty or does an unlawful act intending to cause harm, that is a worse offence than causing harm unintentionally, and that is the effect of s 2.

What is an intent to harm is defined in subsection 3.  Applying the words from s 304(3)(f), the relevant section says:

(2) If a person, with an intent to prevent or hinder the doing of an act by a person who is lawfully entitled to do that act, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

If therefore a person seeks to hinder a paramedic in the performance of his or her duty, does something or fails to do something they are required to do, and that causes bodily harm then the office is committed.   That would be easiest to prove if they did something, such as physically get in the way of the paramedic, but harder to prove if they simply don’t do something, eg don’t move away when asked, as that will raise the question of whether they were under a duty say to obey the directions given.

To return to Dodge’s questions, subsection (1) could be applied to paramedics if they are grossly negligent in the performance of their duties and cause injury but not in the normal practice, or simply where adverse outcomes arise even if they could be attributed to ‘normal’ or regular negligence and the mere fact that the patient suffers an adverse outcome would not attract the operation of the section.

It would seem that s 304(2) could be applied to a person who deliberately interferes with the actions of a paramedic and as a result someone suffers a harm or their life or safety is endangered.

Michael Eburn

2 May 2011