Dr Tony Behrman, medical business consultant at Medical Protection, looks at your legal and ethical obligations when encountering a medical emergency
In the New Testament, Luke 10 relates a parable where a passing traveller who was assaulted by locals and robbed of his possessions. Having been ignored by others, he was eventually helped by a Samaritan. This is the origin of the Good Samaritan act.
Medical Protection offers assistance worldwide in the event of members being involved in a Good Samaritan act. Whether you are in an aeroplane or cruise ship, in a foreign country or at home, your membership offers you the right to request assistance for legal actions resulting from you having performed a Good Samaritan act.
The Good Samaritan in South Africa
However, in South Africa there is no Good Samaritan law in statute, which means that in terms of the codified law, you are not obliged to stop and assist at the scene of a problem and neither are you automatically protected by law should you do so. Furthermore, despite your best efforts and ability, should you perform a negligent act, you could be sued or reported to the HPCSA. This could, however, be mitigated by the lack of facilities and poor conditions in which you were likely working, as well as possible limited expertise in the field of medicine required by the patient involved.
Prior to the adoption of the South African Constitution in 1996, courts would look to the common law and the morality expected of a medically qualified citizen in emergency situations, as well as society’s convictions and expectations (referred to as boni mores) versus one’s own personal and moral conviction.
Current law on emergency treatment
The Constitution of the Republic of South Africa, in Section 27(3), states that no-one may be refused emergency medical treatment. This has been defined by the Constitutional Court in the Soobramoney case as “a sudden catastrophe that calls for immediate medical attention”.
The National Health Act, 61 of 2003, also refers to the right of everyone to receive emergency medical treatment.
In the late 1990s, the predecessor to the HPCSA, the SAMDC (South African Medical and Dental Council), delivered a judgment stating that in cases of emergency, a practitioner is obliged to render assistance in all circumstances.
Thus the Constitution, the National Health Act and the SAMDC (now HPCSA) impose a duty of care on a doctor at the scene of an emergency to stop and assist.
In a comprehensive commentary in the SAMJ,[i] Professor McQuoid-Mason comments:
“Doctors coming across injured people at a road accident should stop and render assistance, unless they are likely to be exposed to personal danger or injury, they are mentally or physically incapable of assisting, or other medical or paramedical practitioners are at the scene. Where there is the threat of personal danger to the doctor, they must immediately report the accident to the police, advise the police to send protection and call for urgent ambulance assistance. Doctors should remain in a safe place near the scene until the police and ambulance arrive and check that paramedics are available to stabilise the injured before departing. Where there is the threat of danger, if doctors are mentally or physically unable to assist or if other medical or paramedical practitioners are at the scene, doctors may or may not be required to stop.”
Risks – and how to overcome them
There are recurring themes regarding why people, including doctors, may be reticent to stop and assist at the scene of an accident:
- lack of sufficient skills in life support
- fear of being exposed to bodily fluids and/or toxic substances in a road spill and the absence of Personal Protective Equipment (PPE)
- fear of acting without the requisite consent
- fear of acting outside your scope of expertise
- fear of being sued for negligence
- being personally under the influence of alcohol or drugs (after a party and the doctor is a passenger in a vehicle) or being physically unable to assist
- personal safety at the scene
- the safety of the doctor’s family in the unaccompanied vehicle
- fear of being involved in a further accident should oncoming traffic or rubbernecking drivers cause further injury or death
- inconvenience and concerns over the security of possessions in the doctor’s vehicle.
As a rule of thumb, if you find yourself at the scene of an accident, you should:
- ascertain if there are emergency personnel at the scene
- consider whether there is a better qualified person present to treat the injured party in the immediate area
- ensure that your personal safety is addressed
- take consent from the injured person, if they have the capacity to understand and agree
- attempt to take as full a history as possible, under the circumstances
- suggest options of treatment, if the situation allows
- work within the confines of your expertise, unless it’s a critical emergency
- hand over to a more experienced colleague as soon as possible and remain on the scene to offer ongoing assistance
- make comprehensive contemporaneous notes as soon as you are able to do so.
By your own estimation, should you or your family’s personal safety be in jeopardy, it would be your duty to call ahead to the police so that they can secure the scene, and to contact the rescue services to dispatch. You should remain in the nearby vicinity, and once you and your family’s safety is secured, you should commence emergency treatment.
Good Samaritan acts do not attract remuneration and no bill is expected to be sent to the patient.
[i] S Afr Med J 2016; 106(6):575-577. DOI:10.7196/SAMJ.2016v106i6.10503