A facebook friend posted these facts (though I’ve removed references that identify the location):

“Walking home late this afternoon, I reached the south corner of … when a woman crossing the road in front of me rolled her eyes and just crumpled, fell in almost slow motion to the street. There was a young bloke sitting outside the Theatre on the corner, and another walking down the Street. So we all arrived at the scene at the same moment, and for a second we all looked at each other (like, “please, somebody ELSE do something!”). One said, “Is she okay?”. I said, “No, she’s not!” – she hadn’t moved! The two guys started to pick her up and try to get her back on her feet and off the street while I ran the One Very Short Block to the Nth end of … Lane where two police officers were chatting to two ambos in a parked Ambulance, in clear view. How lucky! I said, “Did you SEE that? A woman has just collapsed in the road!”

Police Officer 1 calmly replied, “Oh, she refuses to talk to US!” and the ambos seemed equally uninterested. In the split second I’m busy thinking, ‘so what, she needs medical attention!’ two staff-members from the Chapel went racing up the road to the woman’s assistance, id badges flapping in the breeze…
So. You know who to turn to if you have a problem around here.”

She then asked me:

“I wonder what the police/ambos would have done if the woman was not somebody “known” to them? Perhaps she had refused their help, earlier. I can’t know. Even if she had, would you then refuse to assist when she collapses later, in plain sight? And a bystander asks you to attend? She was not walking from the ambulance at the time, she was walking east to west. The police and ambos were parked up the north. If it matters.”

We can review the law here, remembering of course we only have one version of the story and we don’t know what the police or paramedics were doing but taking the facts at face value:

There is generally no duty to rescue but what we mean when we say that is that there is no obligation, imposed by the common law, that requires one person to go to the aid of a stranger. In the absence of a duty that stranger cannot sue for damages if they are not assisted by the defendant. But that is a very narrow focus. We can expand our focus from the tort of negligence.

Under the Police Act 1990 (NSW) the NSW Police Force is to provide policing services, which includes ‘the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’ and ‘the provision of essential services in emergencies’. Police have considerable powers with respect to the control of traffic and making the roads safe for road users, in this case the woman who collapsed, the bystanders who came to help, and drivers on the road (see Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) ss 185 and 186).

A person is not required to talk to police in particular with respect to the investigation of a crime, so a person may refuse to answer police questions or otherwise assist with their inquiries. Such a refusal is not however a refusal of all police assistance. Even if it was that would not be binding in the sense that it would not justify police failing to take action for the community benefit (see my earlier post, ‘Is there a right to refuse rescue?‘).

Could the police officers be sued here? That’s unlikely, we don’t know enough and, further, there would need to be proof of damage but as I said, that’s a narrow focus. Could they be reported for failing to perform their duties? A complaint may be made about the conduct of police officers and conduct includes both action and inaction (Police Act 1990 (NSW) s 121). A complaint may be made about conduct

… although not unlawful:
(i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or
(ii) arises, wholly or in part, from improper motives, or
(iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or
(iv) arises, wholly or in part, from a mistake of law or fact, or
(v) is conduct of a kind for which reasons should have (but have not) been given,

Without knowing the full story, failure to attend a person collapsed in a street, who is not more than ‘One Very Short Block’ away would seem to be ‘unreasonable’; if the motive for not acting was “Oh, she refuses to talk to US!” that could be inaction due to an improper motive, taking into account an irrelevant matter (particularly given their broader obligation to community safety and the person had collapsed on a public street) and/or from a mistake of law (if there was a belief that her refusal to talk to police somehow constituted a refusal of police services). To reiterate too, the service of attending someone collapsed in the street is not just a ‘service’ to them but to the community (we can’t have roads with people collapsed on them) so it’s not a service that can be refused.

The Police Commissioner may also take action with respect to unsatisfactory conduct or misconduct (Police Act 1990 (NSW) s 173). If we ask ‘what do we suppose the Commissioner would want police to do in these circumstances?’ I would think the answer is axiomatic, he would want his police officers to attend to assist as they can, whether that’s simply to direct traffic whilst others (such as ambulance officers) attend the person to take other action authorised by law. I can’t imagine the Commissioner would accept ‘doing nothing’ when approached by a member of the public, is satisfactory conduct.

So suing the police would be difficult, one would have to prove that it made a difference to the eventual outcome (that is their inaction caused some damage) and that they were under a legal duty to take action for the person’s benefit which is generally not the law (though it could be in specific cases and police have been found to owe a duty to come to the aid of others when they are clearly aware of the need and there was no reasonable excuse not to – see NSW v Fahy [2007] HCA 20; Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550).

The far more interesting issue is the place of the ambulance officers. Here we have two ambulance paramedics who are on duty, in their ambulance, they are approached by a member of the public and told that a person has collapsed a very short distance away as evidenced by the fact that the person walked there and we are told, the scene was visible from where they were. We’re told that the ambos were sitting in their ambulance talking to police, not engaged with the care of another patient. They were, in short, at their place of work, not otherwise engaged and approached in their professional capacity as ambulance officers; the facts are so much like the facts in Lowns v Woods [1996] Aust Torts Reports 81-376 as to be uncanny.

In Lowns v Woods a doctor was held to be negligent when he failed to attend a person collapsed when asked to do so in his professional capacity and when he was at his place of work and not otherwise engaged seeing patients. In that case the common law duty was said to arise because of a doctor’s professional standing and because of the special standing doctors have to render emergency medical care. I have argued elsewhere that ambulance paramedics are also empowered, and trained at public expense, to provide emergency care so similar analogy could apply to them (see ‘Doctors, the Duty to Rescue and the Ambulance Service‘, (1999) 10 Current Therapeutics 92-95).

Further in Kent v Griffiths [2002] 2 All ER 474 the London Ambulance Service was liable for failing to promptly respond when called. The sort of factors that suggest police and fire services do not owe a duty of care to individuals was found not to apply to ambulance services that do respond in order to protect the individual in need of assistance, not the community generally.

It may be argued that, for some reason, these paramedics did not need to attend simply when a person approached them, but the error of that argument is obvious if you think that if someone had rung triple zero and they had been despatched to the case they would have had to attend and it can’t make any legal difference whether they are responded in response to a triple zero call, or a knock on their ambulance door.

In an earlier post, ‘Who to treat? A question for St John first aiders’ I discussed whether St John first aiders may be under a duty to attend when they could see a person in need of assistance but where otherwise engaged monitoring a football game as part of their ‘public duty’. There I said “Depending on all the circumstances it could be a breach of duty not to assist, that is if it appears that the injury may be serious or life threatening, it is reasonably easy to get to and there is no equally serious obligation not to attend”. If that’s true when they are on duty at a game, it is even more true when in this case the ambulance officers were professional officers and were not (apparently) otherwise engaged in any ‘duty’.

So I would think the ambulance service could be liable here but only if it could be proved that their failure to attend made the situation worse, that is had they attended there would have been a better outcome. Let assume that is not the case so negligence law is no longer relevant.

Disciplinary action may be taken against an ambulance officer for misconduct which includes ‘improper or unethical conduct’ (Health Services Regulation 2013 (NSW) s 14, definition of ‘misconduct’ and s 17). As noted in an earlier post (‘Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident)’, the State Administrative Tribunal of Western Australia has found that failing to assist at a road accident constituted improper professional conduct by a medical practitioner. They said

It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so,

Now the WA Act does not apply to a NSW Paramedic, but similar reasoning could be applied. Again I think it is a fair question to ask ‘what would other paramedics and the CEO of the Ambulance Service expect of their paramedics who are close enough to witness a person collapse in the street? Would they expect them ‘to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so?’ If so, I would suggest that could establish that the paramedic has engaged in improper conduct.

Paramedics are not registered health professionals. If they were a complaint similar to that made against the West Australian doctor could be made to the relevant paramedic registration body. Even thought they are not registered health professionals a complaint may still be made to the Health Care Complaints Commission (see Health Care Complaints Commission, Information for unregistered health practitioners and Public Heath Regulation 2012 (NSW) reg 99 and Schedule 3). That code of conduct relates to things unregistered practtioners must do or not do when providing health services, but would not seem to be applicable here where the paramedics did not provide a health service. Doctors, and arguably paramedics, may be under a duty to assist because of their position and training, but it would be impossible to impose a duty on ‘unregistered health practitioners’ as there remains no general duty to rescue.

So, in short:
1. Negligence requires proof of damage; that is the plaintiff has to prove the alleged breach of duty of care caused some harm. In the absence of that proof negligence law has no application. We do not know from this story what the outcome was but let us assume that damage could be proved.
2. Showing that the police had a legal duty to go and assist the injured person would be difficult, but not impossible.
3. The paramedics would seem to be in a very similar position to the doctors in Lowns v Woods and Medical Board Of Australia v Dekker as well as the London paramedics in Kent v Griffiths. If damage could be proved I would think the person would have a case well worth exploring against the Ambulance Service of NSW (not the individual paramedics).
4. Assuming that damage can’t be proved, and in any case assuming that the action against the police would be unlikely to succeed, a complaint could be made that the police officers and paramedics were guilty of misconduct. Those complaints should go to the Commissioner of Police and the Chief Executive of the Ambulance Service, respectively.
5. I note again that I do not have access to the full facts and this commentary is based only on the facts given to me. We should be careful not to prejudge the matter, I do not say the officers are or were guilty of misconduct, but on the facts given it would certainly be reasonable, if one wanted to, to make the complaint. It would be up to the Commissioner and Chief Executive to investigate the complaint, consider other facts that we may not be aware of, and make the appropriate determination.

Michael Eburn
18 December 2013