The representative of a company that sells Defibrillators was:
… recently surprised to find an order returned as the company believed there was a legal risk to their staff or the company if one ever had to see use. I’m no lawyer, but I’ve been doing some research with the aim to writing a short blog post to dispel the myth that having lifesaving equipment is a legal burden, and came across a number of your articles. I was wondering if you would consider this a true statement:
“There is no physical risk to staff or the victim: a defibrillator will not and cannot be made to deliver a shock unless it detects the need for one.
There is no legal risk to staff using a defibrillator: Australia is one of many countries to enact a “Good Samaritan Law” that offers legal protection a person who gives assistance in an emergency. The entire purpose of this legislation is to encourage people to assist strangers in need without the fear of legal repercussions from an error in treatment. There has been no reported Australian case in which a “Good Samaritan” has been sued by a person claiming that the actions of the good Samaritan were negligent.”
I can’t comment on the first part of that draft statement, that is it’s not for me to confirm whether there is, or is not, any physical risk to staff or the victim from the defibrillator.
I have previously commented on legal issues arising from the use (or not) of automatic defibrillators. See:
- Making the installation of AEDs compulsory (27 September 2015); and
- Liability for failing to install an AED (7 April 2016).
The problem with addressing an issue like this is the statement ‘the company believed there was a legal risk to their staff or the company if one ever had to see use.’ Without any context it is hard to see what risk the company thought existed. I don’t know what the company was, what it did or what it imagined the risk might be. I suppose there’s a legal risk in doing anything but that doesn’t actually stop people getting out of bed and going about their daily business. Without knowing what they had in mind it’s hard to make any meaningful comment.
It is true that I am not aware of any reported cases where anyone has been successfully sued for performing CPR or using an AED, or for that matter, not doing CPR or not using an AED.
The ‘good Samaritan’ provisions are interesting. See
- Nurses as ‘good Samaritans’ – can I be liable if I do stop? (March 22, 2014)
- Doctors as ‘good Samaritans’ – do I have to stop? (March 23, 2014)
- NSW SES Good Samaritans (August 25, 2014)
- Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014)
- Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)
- RFS volunteers as roadside good samaritans(February 4, 2015)
- Good Samaritan legislation and scope of practice(March 27, 2015)
- American Good Samaritan protected by Ohio Statute(May 20, 2015)
- Doctors as (airborne) good Samaritans (January 12, 2016)
- Excluding good Samaritan protection for the intoxicated (March 17, 2016 )
It is not correct to say that ‘Australia is one of many countries to enact a “Good Samaritan Law”…’ There is not one law and the law that there is was not enacted by ‘Australia’ but by the Australian States and Territories. It would be correct to say ‘All Australian states and territories have enacted ‘good Samaritan laws to protect people who, without expectation of fee or reward, to assist in a medical emergency …’
Whether the laws apply in a particular circumstance depends on all the facts. The NSW law, says that a ‘good samaritan’ [sic] is a 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’ (Civil Liability Act 2002 (NSW) s 56; It should be ‘good Samaritan’ as the biblical parable is about a person from Samaria, the capital of ‘what had been the Northern Kingdom of Israel’. ‘Samaritan’ should therefore have a capital ‘S’ just as ‘Australian’ has a capital ‘A’, but there is no capital ‘S’ in the legislation). Whether a person using an AED fits that description depends on the circumstances. If the ‘company’ purchased an AED to be used by its employed first aid officers, they are not ‘good samaritans’. They are not providing assistance without expectation of ‘payment or other reward’ if providing first aid is part of their job and in particular if they get paid a first aid allowance.
It may be that they are good Samaritans if they provide care to someone for whom the company has no particular duty that is someone who is neither the company’s employee or customer, someone who might be described as ‘a stranger’. A first aider who sees a person has collapsed on the street outside the company’s offices and goes to help is, perhaps, acting outside their duties as the company first aider and is therefore a good Samaritan. Alternatively, if the company itself owes no duty to rescue the person with the heart attack, then the company may be a good Samaritan. The company acts through its staff member and would be liable for any negligence by its staff member. But a company is a legal person so it too could argue that by allowing its staff member to render assistance, it was a ‘good samaritan’ and entitled to any protection the law provides.
Regardless of good Samaritan laws the real question is what harm can a person do with one of these things? My understanding is that indeed they won’t deliver a shock unless one is called for so short of hitting someone on the head with it, what harm is there? There may be some concern that there will be liability if it’s not used properly and so perhaps no shock is delivered when one is called for as the pads weren’t properly placed. For that to be true someone would actually have to prove that was the case, and that it would have made a difference to the outome! Defibrillation does not guarantee survival so such a claim could hardly rise above the level of mere speculation.
Any company is required to do a risk assessment and determine for itself what the first aid needs of its workforce are (Work Health and Safety Regulation 2011 (NSW) r 42). A company could well decide that the risk profile in its workplace did not warrant having an AED, but it’s hard to see on what basis a risk assessment would conclude that having an AED in situ actually increased some risk so one should not be installed after having purchased it.
So is my correspondent’s summary correct? It’s close. It would be better to say:
There is very little legal risk to staff using a defibrillator: All Australian states and territories have enacted “good Samaritan” laws that offer legal protection to a person who gives assistance in a medical emergency. The entire purpose of this legislation is to encourage people to assist strangers in need without the fear of legal repercussions from an error in treatment. There has been no reported Australian case in which a “Good Samaritan” has been sued by a person claiming that the actions of the good Samaritan were negligent.”