The duty of care owed by ambulance officers to persons refusing medical treatment was recently examined by the New South Wales Court of Appeal in the case of Neal v Ambulance Service of New South Wales [2008] NSWCA 346.
Background
In the early morning of 28 July 2001, Mr Neal was discovered by Police lying across a driveway in the streets of Hamilton, near Newcastle. Police observed that he was intoxicated and had suffered a head injury, so they called the Ambulance Service to the scene.
Mr Neal refused assistance from the Ambulance Service and failed to provide the Police with his address. Consequently, Police took him into custody. By mid-morning, Mr Neal's condition had deteriorated drastically and he was taken to the Mater Hospital.
There it was discovered Mr Neal had an extradural haematoma and a fractured skull. These injuries required surgery. Mr Neal now suffers ongoing disabilities – some attributable to the assault that resulted in him lying in the streets and others to the delay in treatment.
Mr Neal brought proceedings against the State of NSW (alleging negligence by the NSW Police Force) and the Ambulance Service of New South Wales (Ambulance Service). Mr Neal alleged that the Ambulance Service acted negligently in failing to provide him with appropriate medical assistance (or failing to advise Police that, given his injury, he needed to be examined at a hospital) and that the Police were negligent in failing to take him to hospital either immediately after he arrived at the police station or alternatively, in failing to take him to hospital at approximately 3.45am when upon a routine custody half-hourly inspection it was discovered Mr Neal had been vomiting.
The trial judge at first instance agreed that the Ambulance Service was negligent, stating that she was:
"satisfied that the ambulance officers breached their duty of care to the plaintiff in failing to inform police officers: (1) of the possible consequences of their inability to fully examine the plaintiff [and] (2) that the plaintiff should be taken to a hospital to be medically assessed".
Her Honour awarded damages against the Ambulance Service in the sum of $99,336.52 on a "loss of chance" basis but found that there had not been a breach of duty by Police.
The Appeal
Mr Neal appealed against the State. Simultaneously, the Ambulance Service cross-appealed, questioning whether a duty of care was owed to Mr Neal and further, if a duty was owed, whether any loss sustained by Mr Neal was linked to this.
The Court of Appeal then had to revisit the issue of liability in relation to the Ambulance Service and Police.
In relation to Police, the Court considered the Intoxicated Persons Act 1979 (NSW) (the Act) which was in force at the time of the incident. It was found that this Act did not include scope to give Police the power to require an intoxicated person to undergo medical treatment or remain in a hospital against their will. The Court found that it was probable that had Police decided to send Mr Neal to hospital after he was detained, he would have continued to refuse treatment and, as such, Police were absolved of liability.
In assessing the liability of the Ambulance Service, the Court considered the relevant provisions of the Civil Liability Act 2002 (NSW) and how a court might assess what course of action a plaintiff "might" have taken, save for the negligence. It was suggested that such an assessment might include consideration of the plaintiff's conduct and feelings at the relevant time, evidence of others who were in a position to assess the plaintiff's conduct or motivation and consideration of any other matters that may have influenced the plaintiff's behaviour. The Court concluded that, despite there being a limited scope for admissibility of evidence of this nature, it should be considered.
While the Court accepted that the Ambulance Service should have informed the Police that Mr Neal required examination and hospitalisation, the Court ultimately held that Mr Neal still failed to establish liability of the Ambulance Service because he had not satisfied the Court that he would have accepted medical treatment in any event.
In December 2008, the Court of Appeal dismissed Mr Neal's appeal, giving judgment in favour of the Ambulance Service. The Court found that the Ambulance Service had not breached its duty of care as Mr Neal had failed to establish that he would have accepted medical treatment had he been taken to hospital.
The Court held that the claim against the Ambulance Service should fail and that the trial judge erred in not considering this issue of causation.
Summary
Two principles emerge from the decision of the Court of Appeal:
- ambulance officers have a duty to take reasonable care in treating a person to whose assistance they have been called, whether the cause of the need for treatment is accidental injury, illness or the result of a criminal attack, and
- ambulance officers are required to pass on information about a person's injury to the police where they are aware that the individual is going to be taken into police custody.
However, the Court of Appeal has qualified this position by also concluding that an ambulance officer's duty to take such reasonable care will not be breached unless the individual can satisfy the Court that he/she would have accepted medical assessment and treatment from a hospital.
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