This question comes from WA. My correspondent says:

I come from a military background we were told that our skill level does not fit into a civilian mould.

The scenario is a large accident, I arrive as a first aider there is a doctors bag with drugs and IV fluids – all of which I have been taught to administer to military personnel

The doctor has been injured and unable to treat or work.

Am I able to use their bag and contents within my training capability?

Before we start with the law, let’s think of this in a theoretical way.  Imagine the scenario and the ‘medic’ does access the bag and uses it in accordance with their training to benefit the victims.  Who, in their right mind, is going to take any ‘legal’ action in relation to the matter?  And what could they do?  Larceny of the drugs?  The use of scheduled drugs may be strictly illegal but if the use was appropriate then who would complain or take action?

But imagine, on the other hand, a person finds out that their relative died even though there was a medic there, who knew what was needed and who had the skills and access to the equipment to do something, but who failed to act for fear of legal consequences.  Who would you sue – and consider here Woods v Lowns (1996) Aust Torts Reports 81-376 where the doctor was sued for not coming to help.  If you were the parent of the child in that case, and you told the doctor refused to come and help, most people would want that doctor’s hide  – but no-one’s been sued for offering assistance.

If the drugs or equipment are wrongly used that is a different question but let us assume the medic is competent and proficient.  It’s simply impossible to see anything other than theoretical legal repercussions.

First remember the doctrine of necessity.  Let us assume, given the scenario, that the patients are at risk of death or serious injury and need the sort of intervention the medic can give – this is not a question of bandaids and reassurance. In Re F [1990] 2 AC 1 Lord Goff said (emphasis added):

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 circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Assuming the medic is in fact competent and knows what he or she is doing, then using the equipment is in the best interests of the patient and a reasonable person of similar training would also do the same.  Note the exceptions, in particular that ‘officious intervention cannot be justified’ so it may be prudent not to act if the event is close to medical aid and the normal response agencies are on their way and the patient’s condition is such that they can wait for the arrival of an ambulance, but of course in WA there are plenty of places where those conditions will not apply.

The medic in this scenario can also rely on the Civil Liability Act 2002 (WA) s 5AD.  That section says

(1)        A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

(2)         A medically qualified good samaritan does not incur any personal civil liability for advice given in good faith and without recklessness about the assistance to be given to a person in apparent need of emergency assistance.

A ‘medically qualified good samaritan’ includes ‘an ambulance officer or other paramedic’.  Paramedic is not defined in WA but one would expect that there would be little difficulty in finding than an ADF medic was a ‘medically qualified good samaritan’.

Finally, my correspondent says that the person is (or has been, a matter to which I will return) an ADF medic.   I would expect that any organisation that trains people in emergency response, whether it’s the SES, an ambulance service or the Australian Defence Force would expect them to use those skills whenever they were required.  I would also expect that such an agency would accept that their member was acting as part of their duties when providing that assistance.  For members of the Australian Defence Force, Health Bulletin No 1/2014 – Provision of Emergency Health Support to Civilians says, inter alia

  1. Authorised health professionals may render emergency treatment to any civilian to save life and relieve suffering when appropriate civilian health resources are not readily available or until such time as the patient can be safely handed over to civilian health care provider.

  2. … Emergency intervention is not to exceed the level of training and clinical competency of the authorised health professional. The standard of care applied is to take into account the circumstances surrounding the emergency and the limited medical equipment that may be available. The principles of consent still apply in an emergency situation.

  3. Immediate action should be taken and continued only until such time as the health support is no longer required or it is practical to hand the patient over to an appropriate civilian health practitioner or health facility, as the primary responsibility for such treatment lies with these authorities.

  4. Authorised health professionals will be acting in the normal course of duty. They are not to accept any form of remuneration either personally or for the services generally.

This bulletin explains “the circumstances under which Defence health professionals are authorised to provide emergency health care to civilians while on Defence duty…”[2].   This would apply if the medic in question came across the accident whilst on duty, perhaps they are driving from one base to another when they come across the accident.

It is not clear what the ADF’s attitude would be to the off-duty medic taking such action.  But the medic can’t deny that he or she is a medic, he or she knows what they know and has the skills they have. If the equipment in the doctor’s bag is equipment and drugs they are familiar with and their use is within their normal scope of practice, that is they would normally administer the treatment or drugs on their own initiative and assessment of the patient, there is no reason not to do so in the situation described.

The complication here arises if the person with ‘a military background’ is no longer a member of the ADF but they still know what they know and let us assume they remain competent or proficient in the skills they learned – someone who was a medic 30 years ago is different to someone discharged last month.   That person can’t take any comfort from Health Bulletin No 1/2014 as they are no longer a member of the ADF.  They can still take comfort from the doctrine of necessity and the Civil Liability Act 2002 (WA) s 5AD(1) discussed above.

Conclusion

The question I would want to ask the medic is just how sure are you?  Are you sure you’ve identified the drugs or other equipment? Are you sure for example that you understand the dosage and strength of what’s in the doctor’s bag?  Are you confident in your diagnosis?   How long is further assistance going to be?  If you are sure, assume the drugs are in a standard dose and packaging, the medic is experienced enough to know their own limitations and action is required to save a life then do it.  Legal implications are more likely to arise from failing to act because of a fear of personal repercussions than taking action that is consistent with one’s training and capabilities.

For further discussion, see Doctor As Volunteer Life Saver And Scope Of Practice (February 6, 2015) and all the other posts referred to there.

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