This is another question about the scope of practice for a medical professional when acting as a volunteer. I have answered similar questions for nurses (‘Volunteer nurses and their skills’ (December 12, 2012)) and paramedics (‘‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic?’ (March 28, 2013) and ‘ALS Paramedic as volunteer with St John’ (WA) (April 5, 2014)). Today we are addressing the position of a doctor who is also a life saver with Surf Life Saving NSW.

My correspondent writes:

I am a doctor working with the NSW Air Ambulance on the rescue helicopters. Due to this I am well trained in resuscitation and critical care medicine. I also volunteer for my local Surf Life Saving Club and this is where my question comes from.

I was on patrol … (as a life saver) when a lady was dragged out of the water unresponsive and in cardiac arrest. The life savers (myself included) started CPR and managed to regain spontaneous circulation. Lifeguards and Paramedics arrived and the lady was then taken to hospital.

As you can imagine with the involvement of 3 different organisations that never train together it could have gone more smoothly. I presented the resuscitation at a meeting of my Ambulance colleagues. This presentation and resuscitation brought up a few questions that I am hoping that you will be able to help us with.

1 – As I was responding as a Life Saver (in their uniform) am I limited to what I can do medically by my Life Saver training or can I undertake procedures that I have been trained to do as a critical care/pre-hospital doctor?

2 – If I perform a procedure that I am skilled at when my Air Ambulance team and equipment is present but do it with equipment from the road paramedics (or other organisation) is that legally ok?

2a – Do I need to have the same equipment/monitoring that I would have “normally” or can I make do with what I have if I believe that it is in the patient’s best interest?

One big problem that I faced was that it was difficult to prove that I am a rescue helicopter doctor (especially whilst wearing a Life Saver uniform). This meant that I was not always listened to and things were not done as I would have liked and I found it difficult to influence the outcomes at times

3 – In that situation if things are not done correctly by others within the team (not me) but I do not intervene what is my liability? Obviously if it was a life ending situation I would step in etc. but if it is say making sure that monitoring or oxygen were on the patient for transfer from the beach to the road ambulance?

4 – Do I have a responsibility to lead and control the situation as I would in my day job as I am responding for an official “rescue” organisation (Surf Life Saving) but not the one that I work for? If you know what I mean!?

5 – Is there a “Good Samaritan” law in Australia and if so what does it actually mean?

1 – As I was responding as a Life Saver (in their uniform) am I limited to what I can do medically by my Life Saver training or can I undertake procedures that I have been trained to do as a critical care/pre-hospital doctor?

To answer that question one has to consider how the question might arise. There are three ways that I can think of: the most likely is that the patient has died and the coroner is holding an inquest; the second is that there has been some allegation of negligence that has contributed to a poor outcome; the third is that Surf Life Saving is seeking to take some action for the doctor moving beyond the scope of Surf Life Saving’s training.

Let me work on the second of those situations even though I think it is the least likely.   Imagine you are the family of the deceased and you think the Surf Life Savers were negligent in the performance of their task. What could that negligence be? Either that they did not do something that they should have done.

If the allegation is that they did not do something that they should have done, and in the course of the process it is discovered that one of the life savers was a very experienced, well trained emergency rescue doctor (not a GP who might not have much emergency experience, but a doctor who works on rescue helicopters) and that doctor recognised a need for some care, but did not give it, the case is a lay down misere (ie ‘An absolute certainty’).

What if the allegation is that they did something they should not have? Eg a doctor treated with skills beyond that of a Surf Life Saver. The question is how could providing that extra care have contributed to the damage or poor outcome.   If the allegation is that the life savers were providing poor treatment and again it turns out there was an experienced doctor with particular expertise in emergency medicine, it would be easy to say that the doctor should have stepped in to correct the treatment by others.

The critical issue that must be kept in mind is the patient’s best interests. Not Surf Life Saving’s interests, not the doctors and certainly not the insurers. In the case of a patient who is unconscious treatment is justified by the doctrine of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

That allows treatment that is reasonable in the circumstances and in the best interests of the patient. Withholding care that the doctor understands is required is not acting in the patient’s best interests.

Imagine now, that the case is before the coroner; what would be the reaction if a doctor explained that he or she could have taken action to save a patient but didn’t because they were acting as a surf lifesaver and therefore, somehow, couldn’t apply the skills they had?

If the matter is before Surf Life Saving and they seriously say ‘a doctor can’t provide care that is necessary and they are competent to provide because it’s beyond Life Saver training’ then as the doctor would have to resign. Complying with that direction would not only compromise your patient it would also compromise your professional registration.

Ultimately what cannot be denied is that a medical practitioner has the knowledge and skills that he or she has. It will be different depending on their work and experience but what they know, they know. A doctor doesn’t stop being a doctor when he or she leaves work; they remain a registered health professional with all their skills and knowledge.   On this example the patient needs care, the doctor can recognise the need, is capable to provide that care and has taken on, albeit as a life saver, to provide some care for that person. There is no legal barrier to providing that care. And if Surf Life Saving say you can’t do it, you would have to just step out of that role and do it anyway because of your professional duty to the patient whose care you have taken on.

Answer: You are not limited to what I can do medically by my Life Saver training. Not only can you, but you must undertake procedures that you have been trained to do as a critical care/pre-hospital doctor with the understanding that you are on a beach and without the equipment you carry as a critical care/pre-hospital doctor so you can only do what you can do in the circumstances and with the resources at hand.

2 – If I perform a procedure that I am skilled at when my Air Ambulance team and equipment is present but do it with equipment from the road paramedics (or other organisation) is that legally ok?

Answer: It’s OK if the ambulance paramedics allow you to use their kit. As a doctor you can use and administer the various drugs so there isn’t the issue that paramedics have where there authority is given by their employer to be used during their employment. As for other gear in an ambulance, there is no need for a licence to use any of it. If you know how, and the paramedics are willing to let you, you can use their kit.

2a – Do I need to have the same equipment/monitoring that I would have “normally” or can I make do with what I have if I believe that it is in the patient’s best interest?

That is a clinical question. There may be some treatment or care that should only be provided in certain circumstances that do not apply on the beach. Perhaps as a doctor you would perform a tracheostomy if you had the kit that is carried in the helicopter and an appropriate assistant. In that case you would not try to do it on a beach with a pen knife.   If a drug should not be administered without some monitoring equipment at hand then it should not be administered.

Answer: In any allegation the circumstances have to be taken into account. The beach is not the ideal clinical practice setting so the question will always be whether the risk outweighs the potential benefit.

3 – In that situation if things are not done correctly by others within the team (not me) but I do not intervene what is my liability? Obviously if it was a life ending situation I would step in etc. but if it is say making sure that monitoring or oxygen were on the patient for transfer from the beach to the road ambulance?

Answer: It depends on the ‘others’ are. If they are your Life Saving colleagues, who presumably know you are a doctor, and you are part of their team, then I would think Surf Life Saving would be liable for any negligence . Surf Life Saving has an obligation to take reasonable care of the people it comes into contact with. If a member of their team is providing poor quality care, another member knows it but does nothing about, that has to be negligent.

If the negligence is by the Lifeguards (ie life savers paid by the council to patrol the beach) or the ambulance service the situation is different. You are not in control of them and certainly with respect to the paramedics, once they are on scene they are the statutory authority responsible for transporting the patient to hospital; unless you’re prepared to go to hospital with them, you are going to have let them take control of the care of the patient (see ‘Step aside – I’m a doctor’ (October 17, 2014)).

4 – Do I have a responsibility to lead and control the situation as I would in my day job as I am responding for an official “rescue” organisation (Surf Life Saving) but not the one that I work for? If you know what I mean!?

Answer: That depends on the command structure within your organisation and your role within it. In terms of the clinical care I would suggest you have a responsibility if you believe that the care being provided by your colleagues is sub-standard. If they are doing CPR and there is nothing you can add, you can stand back in order to let them gain the experience. If there is an error in their technique, use the chance to train them.   You do not have a responsibility or more importantly the authority to take control of the response of the other agencies.

5 – Is there a “Good Samaritan” law in Australia and if so what does it actually mean?

No and yes. No, there is no Australian law but yes, there are good Samaritan laws in each State and Territory. In New South Wales the Civil Liability Act 2002 (NSW) s 57 says

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

A ‘good samaritan’ is ‘person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).

What it means is that someone who steps up to help and acts from a genuine desire to help the person in need is not liable for their actions even if those actions are negligent and cause harm.  If there is someone who is vicariously liable for them that remains. That is an interesting subsection, vicarious liability usually only applies where the person is employed and acting in the course of their duties, but if it’s their job to help, then they are not a good Samaritan.  The provision could apply here where the Life Saver is a volunteer and Surf Life Saving could be vicariously liable for any alleged negligence but that would seem to conflict with the volunteer protection provisions, below.

It is arguable that a member of Surf Life Saving is not a good Samaritan. They are on patrol as part of their duties and they do get reward from their service.   As I have said in an earlier post dealing with St John ambulance volunteers (‘Who to treat? A question for St John first aiders’ (June 30, 2013)):

This section is not intended to cover an organisation such as St John that is there holding itself out as professional and skilled in the area. St John gets significant reward for doing this work, that is it reason for being and it is a large albeit not for profit organisation. The volunteers also get rewards such as social standing, training, access to events etc. The status and standing that comes with being a volunteer can be quite significant (see Castle v Director General State Emergency Service [2008] NSWCA 231). Further the medical crisis at a public event where St John is on duty is not, or should not be an emergency for them, that is what they are trained and there for, that is day to day business.

In my view the relevant protection is not in Part 8 but in Part 9 dealing with volunteers.

You can substitute the words ‘Surf Life Saving’ for St John to the same effect.

Part 9, s 61 says ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work’. The effect is that if a person is a member of an organisation like Surf Life Saving and they are performing their duties they cannot be personally liable for any negligence.  Part 9 does not say that even though the volunteer can’t be liable, the organisation can be.  In fact in a provision that is unique to NSW, s 3C of the Act says ‘Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort’.  That would suggest that if a volunteer is negligent and injures someone both the volunteer, and the organisation they volunteer for are protected leaving the injured person with no remedy. For that reason a court may be quite willing to find that the relevant protection is found in the good Samaritan provision as that would protect the volunteer but still give the injured person a remedy.   The matter is yet to be tested and it should be noted that Queensland has had good Samaritan law since 1974 and the laws have never been tested; that is good samaritans don’t get sued.

Summary

A doctor is a doctor and knows what he or she knows, and can do what he or she can do, whether they are at work or not. The practice of medicine is much more unregulated than people believe. One can’t call oneself a doctor unless you are a doctor but in terms of skills and technique there is no list of what is or is not something that only a ‘doctor’ can do (except perhaps write prescriptions).

If a doctor is on duty with Surf Life Saving then he or she has the skills they have. If a person needs their care the expectation of the law and the community will be that they will do what they can in the best interests of that person. That does not requite them to have all the gear they might have if they are at work, all the circumstances have to be considered, but if there is something that they can do, and it would help, not doing it because ‘Surf Life Saving haven’t provided training’ would not be justified. If the concern is that ‘Surf Life Saving aren’t insured’ then the concern is not the patient’s best interests, and that represents unethical conduct and may suggest that the action is not being taken ‘in good faith’.

Do what you can do to help.