A correspondent has brought to my attention that the ACT legislature has passed the Health Legislation Amendment Act 2015 (ACT).  One effect of this Act is to amend the Civil Law (Wrongs) Act 2002 (ACT) to provide good Samaritan protection for those who administer ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person’.

Before the amendment the Act said (at s 5):

(1) A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently—

(a) injured or at risk of being injured; or

(b) in need of emergency medical assistance.

(2) However, the protection does not apply if—

(a) the liability falls within the ambit of a scheme of compulsory third-party motor vehicle insurance; or

(b) the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug.

(3) In this section:
good samaritan means—

(a) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance; or

(b) a medically qualified person who, acting without expectation of payment or other consideration, gives advice by telephone or another form of telecommunication about the treatment of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance.

medically qualified—a person is medically qualified if the person—

(a) is a doctor; or

(b) has professional qualifications in a field of health care that are recognised under an Act; or

(c) works, or has worked, as a member of the ambulance service or in another paramedical capacity.

The amendment adds a new subsection 3 which says:

Despite subsection (2) (b), if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person, the protection under subsection (1) applies even if the good samaritan’s capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug.

(The definition section is then renumbered as sub-section 4).

Recreational drug means ‘a drug consumed voluntarily for non-medicinal purposes, and includes alcohol’ (Civil Law Wrongs Act 2002 (ACT) s 2).

Having drawn the change to my attention, my correspondent says ‘I look forward to your opinion’; which I’m happy to share.

The first thing to note is that the new sub-section (3) doesn’t imply that a person who administered ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose’ would not have enjoyed good Samaritan protection even without the amendment.   A sober person could have used naloxone and relied on s 5(1).

What’s interesting is the provision that says a person who uses naloxone enjoys good Samaritan protection even if their ‘capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug’.  What that means is that exclusion contained in s 5(2)(b) does not apply.

What’s my opinion on that change?  That’s all well and good, it is likely that people who are with someone who is suffering an opiod overdose may well have taken the same drug so they may be affected and if they need protection to take steps to save their friends life, all well and good.

My opinion is that s 5(2)(b) is a complete rubbish section and should be removed.  Its presence defeats the purpose of the Act.  Remember that there are no reported cases of anyone being sued for rendering emergency first aid – that’s no one, ever – see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015).

Legally, the good Samaritan provisions are not necessary.  As the Ipp Review on the Law of Negligence reported (Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]; emphasis added):

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption.

So if there was no legal problem to be solved why was the legislation introduced? Answer, to solve a perception problem – that is if people had ‘a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations’ and that made them unwilling to come forward, enacting good Samaritan legislation might remove that anxiety and therefore encourage people to act.  No doubt a good and sufficient motivation.

But why add s 5(2)(b) when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs!

And why does the ACT remove that clause when administering naloxone but no other treatment? The opioid user who administers naloxone enjoys the protection but if he or she fails to also put the person in the stable side position or performs rubbish CPR they don’t have that protection because there the treatment may be negligent (albeit in good faith) but s 5(2)(b) applies.

Finally a provision denying protection to those affected by drugs or alcohol does not apply in Victoria (Wrongs Act 1958 (Vic) s 31B) or Queensland (Law Reform Act 1995 (Qld) s 16).

Conclusion

My opinion is that the good Samaritan legislation was introduced to resolve a perception problem not a legal problem.  Having enacted good Samaritan legislation however, every jurisdiction other than Victoria and Queensland have moved to make the legislation ineffective when it might actually be needed that is when a person who could actually help knows they’re not performing as they might at work.   It is then that people should be reassured that if they do their best to help they won’t be liable because doing something is better than doing nothing.

Do I think the new provisions in s 3 of the ACT Act are a good idea?  Yes, but the section doesn’t go far enough.  If an opioid user needs to control the life threatening haemorrhage, or do CPR or otherwise treat their ‘mate’ they, like everyone, should enjoy the good Samaritan immunity because reassuring people that they won’t be liable for honestly doing their best to help in an emergency and before the emergency services get there, is the very point of the Act.