This question comes from a paramedic practitioner with a private provider rather than a state ambulance service.  My correspondent tells me:

A recent cardiac arrest occurred outside a doctor’s clinic.  Help was requested from the doctor’s clinic and was refused, stating the doctors are not legally required to assist and they were reluctant to as they are not covered by insurance.

I would have thought the Hippocratic oath and good samaritan legislation would have covered this scenario.

What are your thoughts?

Given my correspondent is from an ‘Events/Industrial’ paramedic service I’m not sure if they were there as part of their response, or just as citizen on the street.  I also note I’m not sure what jurisdiction this question comes from but none of those things matter.

My thoughts are:facepalm(https://imgflip.com/memegenerator/Computer-Guy-Facepalm)

Clearly 7 ½ years of writing this blog is just not making a difference.

I’m going to accept my correspondent’s version, ie the doctor’s excuse for not helping was ‘doctors are not legally required to assist and they were reluctant to as they are not covered by insurance’; not that they were engaged seeing other patients and in the middle of a procedure or any other reason.

Are doctor’s legally required to assist?  The traditional view is that there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) but doctors are in a special position by virtue of their training, the money the community spends on that training, the status they are given and the authority that comes with their position in the medical field.   In short we don’t train doctors so they can earn money, we train them so they can provide medical care and we pay them to provide the care – but the principle of the profession is (or should be) the care that is provided.

So in Woods v Lowns, Dr Lowns was found liable – to the tune of $3m – for failing to render assistance to a young epileptic when he was approached by the boy’s sister at his surgery and was asked to come the short distance to where the boy was fitting.  Dr Lowns was not yet seeing patients and there was no good reason not to attend.    His Honour Mr Justice Badgery-Parker said (Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J); affirmed on appeal Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting):

“… circumstances may exist in which a medical practitioner comes under a duty of care, the content of which is a duty to treat a patient in need of emergency care, such as will give rise to a cause of action for damages for negligence in the event of a breach of that duty consisting in a failure to afford such treatment as is requisite and as is within the capacity of the individual practitioner to give… Whether in a particular case a medical practitioner comes under such a duty of care must depend upon … the facts of the particular case…”.

Whether the circumstances described by my correspondent are sufficient to attract that duty would be a matter for a court and would require much more detail than we have, but it does show that a claim ‘doctors are not legally required to assist’ is at least ‘uninformed’ at worst ‘ignorant’ and either way ‘brave’ (in the way that term is used in ‘Yes, Minister’ for those old enough to remember that show).

As for ‘not covered by insurance’ I would bet, even without seeing the policy, that this is rubbish. A medical practitioner has to have a policy of insurance in order to be registered as a medical practitioner and the indemnity policy will have to cover them when practising medicine (Health Practitioner Regulation National Law Act 2009 (Qld) s 129; the Queensland law has been adopted as the law in every jurisdiction so this law applies across the country).   A practitioner who assists a person outside their surgery when they have been requested to assist because they are a doctor, is practicing medicine (see Medical Board of Australia, Professional indemnity insurance arrangements registration standard (2010), definition of ‘Practice’).  Now I haven’t see this doctor’s policy but I cannot believe that a policy that covered a GP in private practice would not extend to providing care either in or out of the practice remembering that this doctor was approached at the practice because he or she was a doctor.

Doctors don’t swear the Hippocratic oath anymore.  The Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia (2014) does says, at [2.5] (emphasis added):

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.

Whilst there may be limits on what a doctor can do taking into account the factors listed, good medical practice ‘involves offering assistance’, not refusing it and not refusing it for fear of legal liability.  In Medical Board of Australia v Dekker [2013] WASAT 182 it was 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, … would…reasonably be regarded as improper by medical practitioners of good repute and competency…

The finding that Dr Dekker was guilty of unsatisfactory professional conduct was set aside on appeal (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)).  In that case the Western Australian Court of Appeal said (Dekker v Medical Board of Australia [2014] WASCA 216):

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening)…

So a general statement that a doctor always has to stop cannot be supported and in that case given the circumstances including that Dr Dekker was herself nearly involved in the accident, it was dark, she didn’t have a torch or first aid kit and the police station was only 5 minutes away all meant that a finding that she should have gone to the accident rather than the police station could not be supported.  But the story I have is that the doctor is approached at the surgery, we don’t know what time but if the surgery was open presumably it’s business hours and daylight, so given the terms of the Medical Board’s code of conduct it could and I suggest would, still be the case that in the right circumstances failure to offer assistance in an emergency that takes account of the doctor’s safety, skills, the availability of other options and the impact on any other patients’ would constitute unsatisfactory professional conduct.  Again the doctor’s belief that there is no legal obligation to assist is ‘brave’.

My correspondent refers to the Good Samaritan legislation.  The Ipp Review of the Law of Negligence, in the Final Report (at 7.21) said:

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.

Even though the Ipp Review recommended against Good Samaritan legislation, every state and territory moved to enact it  – see see Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 56; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8;  Law Reform Act 1995 (Qld) s 16; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B;Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB).  This legislation was written with doctors who are reluctant to assist, in mind.

The NSW version says:

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.

So my correspondent says ‘I would have thought the Hippocratic oath and good Samaritan legislation would have covered this scenario’. It’s actually the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia but otherwise that statement is correct.

Conclusion

A doctor who thinks “I’ll only practice where I’m confident I’m insured; not where I’m confident I’m competent” and who puts their insurance concerns ahead of patient care, probably needs to rethink their role in the profession.

My correspondent may well want to consider approaching the Medical Board of Australia and lodging a complaint regarding this doctor’s response.