A correspondent has asked ‘Can a person refuse to be rescued?’ He gives the context as:
A person is involved in a motor vehicle accident in an area serviced (primarily) by a volunteer rescue service, however there is also a professional emergency service nearby that can also provide rescue services (they act up as primary rescue service should the volunteer service not be available).
The person in the accident knows that the quality of the service provided by the volunteer service is poor, and is able to convey their wishes that they want the professional rescuers to rescue them and not the volunteers. Can the person trapped in the car say “I refuse permission for you to touch me!”? Are the volunteers bound by the wishes of the trapped person? Do they have a duty of care that overrides the person’s wishes?
That’s an interesting question. My answer is ‘no, they can’t refuse rescue, nor can they insist on being rescued by the paid service’.
To explain my answer I will assume that the person does not have life threatening injuries so we can assume they are mentally alert and competent. Let us also assume that they are not affected by drugs or alcohol. If they were that would again raise issues of competence and, if they were the driver, it would allow the police to arrest them, and then police could order that the rescue service to cut them out. We have to assume therefore a competent person, trapped but not seriously injured, and not suspected of having committed a serious offence.
I will also assume that issue occurs in New South Wales. I make that assumption in part because New South Wales regulates rescue under the State Emergency and Rescue Management Act 1989 (NSW) (SERM Act), though, in reality that will make little difference and the answer would be the same in any State or territory.
In New South Wales the police are responsible for managing rescues (SERM Act s 50). The police do not have to actually conduct the rescue; that is done by rescue services that have been accredited by the State Rescue Board. For each area the State Rescue Board appoints a primary and perhaps a secondary rescue service. When an emergency is reported to police, the police call out an accredited rescue service to perform the rescue. Rescue services are provided by NSW Fire and Rescue (NSWFR), NSW Police, the Ambulance Service of NSW, the State Emergency Service (SES) and the Volunteer Rescue Association (VRA), and there may be others. The SES and VRA are volunteer organisations.
Apart from coordinating rescue, police have the power to ‘seize and take charge of and remove or tow away or cause to be removed or towed away, any motor vehicle …that is a danger or unreasonable obstruction to traffic’ (Road Transport (Safety and Traffic Management) Regulation 1999 (NSW) s 145; Tow Truck Industry Regulation 2008 (NSW) s29). Further, if a vehicle that has been involved in an accident is posing a danger or obstruction to traffic, a police officer may ‘remove the vehicle … and take such other steps as may be necessary to protect the public and facilitate the free flow of traffic’ (Road Transport (Safety And Traffic Management) Act 1999 (NSW) s 75). Finally ‘A person must obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer (Road Rules 2008 (NSW) s 304).
A person who refuses to be rescued affects not only him or herself but the community and the community has an interest in ensuring that the roads are clear, traffic can proceed and people are not left injured in crashed cars. In these circumstances, and supported by the legislative provisions, above, the State’s interests would outweigh the individuals. The police could direct the person to allow the rescue to take place, and could direct the rescue service to rescue the person so that they may exercise their other duties to clear the road.
What if the person agrees to be rescued but not by the volunteer rescue service? If there is an accident perhaps on a rural road where the SES have attended to conduct a rescue and the NSW Rural Fire Service have attended to provide fire protection, the police would be acting reasonably to refuse to call the NSWFR rescue service to leave the town boundary and so leave the town with less fire protection. Rescue is not a commercial service, it is provided as a community service and it is up to police, not the ‘victim’ to determine who is to perform the rescue. Delaying a rescue, and responding a second service, ties up State resources and the time of staff and volunteers. These are not resources that the ‘victim’ is free to dispose of as he or she wishes.
If we assume that the law would allow the person to refuse to be rescued one would have to ask what would their remedy be if that wish was not honoured? Assuming there is no negligence in the performance of the rescue what harm have they suffered? If they are taken to medical care earlier than would otherwise be the case they actually have a benefit, rather than any damage. If there is an assault, an unlawful touching, compensation may be awarded even without damages but as argued above, it is unlikely that the touching is ‘unlawful’. In any event the victim would have to deal with section 59 of the State Emergency and Rescue Management Act which says
Anything done or omitted to be done by an accredited rescue unit or by a person as a member of an accredited rescue unit or volunteer does not, if done or omitted in good faith in connection with a rescue operation or otherwise in response to an emergency, subject the accredited rescue unit, the person or any other person to any action, liability, claim or demand.
Similar provisions can also be found in the legislation governing the emergency services including the SES. There could be an argument that doing something contrary to the known wishes of the victim was not ‘good faith’ but it is not an argument that is likely to be attractive to any judge, and the service would argue that they were acting in good faith if they were acting at the direction of the police officer who was in charge of the rescue.
In short, the State has a right and interest in ensuring rescue takes place. Rescue services are not provided simply for the benefit of the person being rescued. Rescue, clearing the roads of accident debris and ensuring that we don’t leave those that cannot look after themselves to die in the street is also in the community’s interest. When the state provides a common good, such as rescue, fire fighting, law enforcement or defence, an individual has no right to insist how it is provided. An individual cannot insist that NSWFR respond to their house fire in preference to the NSW Rural Fire Service, they cannot insist that they are transported by helicopter rather than by road ambulance and they cannot insist that they are rescued by service B rather than service A. Equally they cannot refuse to be rescued because of the unreasonable burden that would impose on the community and the community’s assets (roads, emergency services and police).