Defibs and the law*
Issued by DefibMachines 12 September 2018
For immediate release
Health & Safety Show (North) STAND H60
A Risk Assessment in accordance with Resuscitation Council (UK) Guidelines will always rank as at least “Moderate” (and usually “High” or “Extreme”) the need for immediate access to a defibrillator (or AED) in the workplace. The installation of an AED allows proper care to be administered; and is the only way to save a life in the case of Sudden Cardiac Arrest (SCA). Here is a summary of the most common legal questions on defibs:
Regardless of the circumstances anyone who attempts resuscitation would only be liable if intervention leaves the victim in a worse position than they would have been in had no proper action been taken. In the case of sudden cardiac arrest (“SCA”) it is difficult to see how intervention by a rescuer (certainly one who is not a healthcare professional) could leave someone worse off since without intervention death is inevitable. It is therefore not surprising that there are no reported cases of any such claim.
Fewer than one-in-ten people survive an out-of-hospital SCA but CPR and the use of a defib machine can significantly increase survival rates if performed promptly. It is generally accepted that defib machines can be safely used by members of the public whilst awaiting an ambulance.
The legal defences of “necessity” and (probably) “implied consent” are available. It is reasonable to carry out CPR and use a defib machine on someone who has suffered an SCA even though they cannot consent: Section 5 of the Mental Capacity Act is also of assistance here.
When the victim is under 16yrs there are other technicalities (and the position is slightly different in Scotland and in Northern Ireland) but unless a parent/guardian is present and refuses consent (and possibly even if they do) the position would generally be the same as for an adult.
The Social Action Responsibility and Heroism Act (England & Wales) Act 2015 was introduced to encourage involvement in social action. It requires that, when considering a claim for negligence or breach of statutory duty, the Court must have regard (amongst other things) as to whether the rescuer was demonstrating a predominantly responsible approach towards protecting the safety or interests of others; or was acting heroically. The Courts have always looked benevolently on those who have gone to the assistance of others.
Unlike many other countries, there is no UK legislation stipulating that a defib machine must be provided but their use by laypeople is now widely recommended in UK and international guidelines. This has given rise to concerns that failing to provide a defib machine might lead to a claim for negligence. Each organisation should therefore consider the pros and cons of defib machine provision in accordance with the Risk Assessment provided by the Resuscitation Council UK:
The Risk Assessment should also consider the need and appropriateness of providing: suitable wall signs; AED awareness training; and the location and availability of the defib machine. If it is considered good practice to have a defib machine it is difficult to see how it would be appropriate not to also have these ancillary items.
Someone trying to make a claim (possibly the family of an SCA victim who did not have the benefit of defibrillation) would try to show that it is common practice among such organisations to have a defib machine or that people who work at or visit that location are at particular risk.
Having accepted that it is appropriate to have a defibrillator, it can be argued that: the location should be clearly marked (or communicated to staff or other users); it should be readily accessible; it should be regularly checked (to ensure it is still in its location and not indicating a fault); the pads and battery are changed when needed; and if it is used, it is replaced or serviced.
When a defibrillator is provided it becomes equipment under the Provision and Use of Work Equipment Regulations: failure to maintain it or train staff in its use would be a breach of these Regulations. A claim would only be successful if training were below standard or the defibrillator had not been correctly maintained, leading directly to harm (for example if this was the reason for an unsuccessful resuscitation attempt.)
The use of defib machines by laypeople has been so successful that potential liability for not having one has been questioned. A claimant (perhaps the victim’s family) would have to show that there was a failure to take appropriate safety precautions. It could be seen how certain types of premises would be considered defective if they were not equipped with a defib machine, with signs, training and maintenance, in the same way as if fire extinguishers were not made available.
A lack of resources to incur this cost would not be a reasonable defence. Failing to adopt common practice can be strong evidence that appropriate precautions were not taken.
There are particular rules for some locations, for example dentists in England who see patients are required, in order to pass a CQC inspection, to have a defib machine available for use by the entire dental team, who must be trained in its use.
For any chance of survival, the SCA must be recognised promptly and defibrillation carried out within a critical time period. The major reason so few people survive SCA is that defibrillation is not provided quickly enough. The victim’s chance of survival falls by about 10% with every minute that defibrillation is delayed. Only rarely are emergency services able to attend early enough, so the best way of ensuring prompt defibrillation is for someone nearby to use a defib machine.
This timescale can be extended if the SCA is recognised, the emergency services called and CPR performed at the request or under the instruction of the ambulance control team.
Modern defib machines will not allow a shock to be given unless one is needed, so if a normal heart rhythm is detected no shock will be delivered. They are also safe and present virtually no risk to the rescuer. These features make defib machines suitable for use by members of the public who have little or no training (although awareness of using a defib machine makes their use in an emergency more familiar and therefore less of a worry to the rescuer.)
There is generally no legal obligation to help a person in need, other than by a healthcare professional or first aider in the workplace who willingly accepted that role as part of their employment.
Once a rescuer intervenes he adopts a duty of care. The standard of care expected depends on the level of training and no liability could arise unless the standard of care falls below that which could be reasonably expected of a responsible person in the rescuer’s position. In the case of SCA the risk of incurring liability for negligence is extremely small, as without intervention the victim of an SCA will almost certainly die.
The best way to avoid liability is to follow good practice. This means:
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Notes for Editors:
*No legal advice is herein given and legal advice must be sought
from a legal professional before acting on any
matter covered in in this Press Release.