Following on from the discussion on ‘Nurses as good Samaritans’(22 March 2014) I’ve received this comes to me from a emergency physician in Western Australia and he says:

I am practicing emergency physician in [WA],

Just wondering whether you would be so kind to clarify under the Health Practitioner Act 2010 would folks be potentially prosecuted for not assisting at a medical emergency when off duty but when the practitioner is not impaired in anyway to help and there is no danger to do so (and in which states would this apply)

I guess under APHRA code one is always liable to be ticked off, is that correct?

Very interested in outcome of Poor Dr Dekker

I’ve discussed Dr Dekker’s case in my earlier post ‘Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident’ (28 November 2013 ) and I won’t repeat here what is said there and in particular about the various reasons given as to why she didn’t attend.

We also need to clarify an issue of terminology. My correspondent referted to a person being ‘potentially prosecuted’. As a lawyer I use the term ‘prosecuted’ to refer to a criminal prosecution, not a civil action for damages or an action for professional discipline. As noted in my earlier post, it is a criminal offence for anyone involved in an accident not to render assistance and there is an offence of callously failing to provide assistance in the Northern Territory. This criminal offences are not unique to doctors or health professionals, they apply to everyone.

There is nothing under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) that would create a criminal offence for a health practitioner who fails to render assistance; but I infer that is now what is actually being asked. What the issue here is any legal consequences such as professional discipline or civil liability.

Today there is a national scheme health practitioner legislation. This scheme requires each State and Territory to pass a law based on, or incorporating the Health Practitioner Regulation National Law Act 2009 (Qld). In Western Australia the relevant Act is the Health Practitioner Regulation National Law (WA) Act 2010 (WA).

These Acts set out procedures to discipline health professionals who may be guilty of unsatisfactory professional performance or professional misconduct. Unsatisfactory professional performance ‘ means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’; ‘Professional misconduct’ includes unsatisfactory professional ‘that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (Schedule 1, s 5).

In Medical Board Of Australia v Dekker [2013] WASAT 182 the tribunal said

Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.

The tribunal was making a decision under the Medical Act 1894 (WA) now repealed, but the Tribunal’s reasoning was that failing to stop and at least make an assessment of the person’s needs was conduct that would be regarded as ‘improper by professional colleagues of good repute and competency.’

The Australian Medical Board’s ‘Good medical practice: a code of conduct for doctors in Australia’ says:

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.

That confirms that doctors are expected to assist in an emergency but does point out that there are many factors to take into account. My correspondent has, however, posited that a doctor ‘is not impaired in anyway to help and there is no danger to do so’.

Whilst the language between the 1894 and the 2010 Acts is different, it is not a long bow to draw that failing to assist or at least look to see if one can assist would be conduct that is less than what could be ‘reasonably expected of a registered health practitioner’ and therefore unsatisfactory professional conduct.

In terms of civil liability, the case of Lowns v Woods (1996) Aust Torts Reports 81-376 is well known. Critically in that case the doctor was at his surgery not yet engaged in seeing patients but at work. My correspondent has asked about ‘not assisting a medical emergency off duty when the practitioner is not impaired in anyway to help and there is no danger to do so’.

Here the person is not at work so that critical issue is different, but we are asked to assume the practitioner is not impaired and there is no danger and we might assume that there are no conflicting duties (eg the care of children) that would stop the practitioner coming to assist. Is there a common law duty in those cases? It may depend upon whether or not the doctor is recognised as a doctor and asked to assist, so the doctor may be at a child’s football game and other parents know that he or she is a doctor so ask. That was also a critical issue in Lowns v Woods but I have argued elsewhere that this should not be a critical issue, if there is a duty it must be because the person knows that another needs their assistance, not the way in which they come to know that (see my book Emergency Law (4th ed, Federation Press, 2013), chapter 2).

There is a good argument that there should be no duty as there is traditionally no duty to rescue. In Stuart v Kirkland-Veenstra (2009) 237 CLR 215, Gummow, Hayne and Heydon J said ‘there is no general duty to rescue. In this respect, the common law differs sharply from civil law’ ([88]); ‘So expressed the duty would be a particular species of a general duty to rescue. The common law of Australia has not recognised, and should not now recognise, such a general duty of care’ [99]; and ‘The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue’ [116]. Crennan and Kiefel JJ said ‘The common law does not recognise a duty to rescue another person’ [124].

The status of Lowns v Woods is unclear given this decision by the High Court of Australia, however in Electro Optics v NSW [2012] ACTSC 184 (the case arising from the 2003 Canberra fires) Higgins CJ relied on Lowns v Woods when he said [at 311]:

… whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.

But he wasn’t talking about members of the fire brigades and other voluntary services at all times. The issue in that case was very much about the fire brigades as they were responding to a fire, not off duty fire fighters; but whether he would exclude them or not is not explored as that was not the issue before him.

Lowns v Woods is a unique case that depended on concessions made by the doctor, that he, and any doctor, would have gone if asked and that he would have made a difference if he had attended. In all the circumstances it was easy for the court, when the trial judge preferred the evidence of the girl who said she asked the doctor to the doctor’s claim that it never happened, to find that there was a duty. That precedent can still apply in those circumstances but may not when the facts are changed, when the doctor is not at work, is engaged seeing other patients etc.

A doctor who is aware that there has been an accident or someone is in need of medical care, in circumstances where there is no one else who can assist (eg the ambulance are not on scene and there’s no other agency ‘taking control’ of the situation), where the doctor is not impaired and the situation poses no danger and there are no conflicting duties or obligations, could be found to be under a duty to attend. A trial judge in NSW is bound by Lowns v Woods (the decision of the NSW Supreme Court, Court of Appeal); a judge in another state would have more freedom to find that Lowns v Woods is inconsistent with the High Court decision in Stuart v Kirkland-Veenstra and therefore reject Lowns v Woods and find no duty to assist.

So will a doctor be liable for ‘not assisting a medical emergency off duty when the practitioner is not impaired in anyway to help and there is no danger to do so…’ The answer is that we don’t know. There are legal authorities pointing in both directions. I think the weight of authority is ‘no, there is no duty to come to the aid of others’ but I would think it could constitute unsatisfactory professional conduct.