This question has come up time and again. This time it’s from a life saver in WA who says:
I’m employed by St John Ambulance (WA) as an Event Medic and I also volunteer for them from time to time in a similar role. Additionally, I volunteer at a surf club. As a paid/qualified Emergency 1st Aid provider, when volunteering for either organisation can I be held to account given the higher level of skills I’m trained and employed to use or does the Good Samaritan Act apply at the times I’m volunteering? (Our qualification is Cert IV in Ambulance Care equivalent).
For some earlier, related posts, see
- Student Doctors and Scope of Practice (May 15, 2016);
- Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016);
- NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015);
- Good Samaritan legislation and scope of practice (March 27, 2015);
- Doctor as volunteer Life Saver and scope of practice (February 6, 2015);
- ALS Paramedic as volunteer with St John (WA) (April 5, 2014);
- ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013);
- Treatment outside the protocol (April 2, 2012);
- Medical care and medical emergencies (December 30, 2012); and
- Volunteer nurses and their skills (December 12, 2012).
The answer is, if you’re providing care to someone, you know what you know and you can do what you can do. No-one, certainly not the patient or a judge, is going to reward you for pretending that today, you don’t know, or can’t do something that clearly you can. And certainly they’re not going to reward you for saying ‘I didn’t do everything I could do because I was afraid of my legal exposure or the exposure of your organisation – that I was putting everyone’s interests ahead of the person in need of care’.
A person is entitled to expect ‘reasonable care’, what is reasonable depends on the person’s level of training and knowledge. If there is something you can do and you identify that it needs to be done, then it would be reasonable do to it. Imagine the counter example, assume for example you know how to use an epipen and to recognise the need for it. A patient is having an anaphylactic episode and would benefit from the treatment. There is an epipen to hand. But assume you are, at that time, acting as a volunteer surf lifesavers and the use of an epipen is not part of the life saving training. Do you use it or not?
If you don’t use it do you think anyone is going to thank you for not doing what you could have done? If you do use it is anyone going to sue you? (And if they do sue, whether you use it or not, it won’t be you but the organisation for which you volunteer that will wear that burden. But remember, there are NO cases of law suits in these situations.) The reality is you are much more likely to be sued for not doing it because here was a person in need, you were providing some care and there was something you could have done but didn’t. The good Samaritan legislation won’t help with a decision not to act if your motivation is ‘but today I’m a surf lifesaver’ because you are not acting ‘in good faith’ for the benefit of the patient, but to cover your own backside.
This discussion is only relevant if you don’t need special equipment or you have what you need. If, for example, one of the skills you have is knowledge of how to intubate, but you don’t have an intubation kit with you, then you can’t be expected to intubate the patient nor can you be judged on the basis that if you’d had that kit, you could have done something more for the person.
As for the good Samaritan legislation (in WA, the Civil Liability Act 2002 (WA) ss 5AB-5AE) it says:
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.
A ‘good samaritan’ is any person ‘acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’. I don’t think it applies to St John or lifesaving volunteers. They are at an event or a beach with the very purpose of providing emergency assistance. The members do not get paid (either by the service or the patient) but they do get other benefits from their membership and their volunteering. To extend good Samaritan protection to those volunteers would say that those organisations that hold themselves out as being expert at providing that care, do not have to provide ‘reasonable care’ to their patients. That was not the intention behind the legislation and I don’t think the Act would be extended that far.
In WA the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA) would ensure that a volunteer is not personally liable but that the organisation for which they volunteer (in this case St John (WA) or the surf lifesaving association) would be. I do not think the Civil Liability Act was intended to defeat the policy in that legislation which is to ensure that people who are injured by a negligent volunteer are not left without a remedy.
It is my view therefore that the ‘good samaritan’ provisions do not apply to a first aid volunteer when ‘on duty’.
Can I be held to account given the higher level of skills I’m trained and employed to use?
Answer: Yes, you have those skills and knowledge. If you’re going to help someone, do what you can do to help.
As a general observation, if a person is going to volunteer in an emergency service, but is unwilling to do their best for the person who needs help because of some misperceived fear of legal liability – believing that somehow the law would prefer a person not to do whatever they can to help – then it’s time to reconsider that volunteering.
Does the Good Samaritan Act apply at the times I’m volunteering?
Answer: In my opinion, no. When volunteering, the relevant law is the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA). Even if the ‘good samaritan’ legislation did apply, it would not justify withholding care that a person can identify is needed and which they can reasonably provide.