Are GPs always obliged to respond to an emergency?
For example, would it be 'reasonable' to expect that a GP would know how to deliver a baby if a
woman presented unexpectedly in second stage labour? Should GPs be expected at least to
stabilise and to transfer the patient to a more appropriate level of service? What if the GP does
not have appropriate insurance cover?
Key points
While the law is somewhat unclear, we believe that a GP who is approached in a
professional context should respond to an emergency. A failure to respond could be
found to be unreasonable in the circumstances and amount to a breach of the GP's duty
of care.
The question of insurance cover is a serious one for the GP, but would not be
considered by the courts in deciding whether or not the GP had been negligent in the
circumstances.
It may be implied that by accepting a position or role at a hospital or health service a GP
assumes a duty of care towards a person in need of emergency assistance.
Otherwise the traditional rule has been that a medical practitioner is entitled not to treat a
person who seeks treatment (there is no duty to rescue). This rule was challenged, however,
by the case of Lowns v Woods, in which it was found that in the circumstances of that case a
GP did owe a duty to respond to a call to assist a person who was not his patient.31
We believe that a GP who is approached in a professional context should respond to an
emergency and a failure to respond could be found to be unreasonable in the circumstances
and amount to a breach of the GP's duty of care.32
30 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health
Service [2002] NSWIRComm 44 (18 March 2002) at paras 89 and 90.
31 Lowns v Woods (1996) Aust Torts reports 81-376
32 Lowns v Woods (1996) Aust Torts reports 81-376
21
The next question is what standard of care the GP would be judged against. The answer is:
that of a reasonable GP. It would be reasonable to expect any trained GP to be able to
stabilise and transfer a patient to a more appropriate level of service. Further, it would be
reasonable to expect a GP to know how to deliver a baby and to perform other basic
emergency procedures.
The issue of GPs not being indemnified for undertaking emergency procedures outside their
usual scope of practice is a serious one and should be raised by GPs with their indemnity
insurance providers. Most insurance policies for doctors cover this eventuality. Where a health
care professional is employed by a public hospital or health service and is acting within their
scope of employment, the principle of vicarious liability will apply and the employee health care
professional will be fully indemnified for any damages that are awarded in the event of a
successful action in negligence against them. The Rural General Practitioners Medical
Indemnity Insurance Policy provided by the VMIA also does not exclude procedures. If a GP
has alternative cover, then they will need to look at the coverage offered by their indemnity
insurer.
It should also be noted that any person (including a health care professional) who provides
assistance, advice or care to another person in relation to an emergency in which the person
expects no money or financial award for providing the assistance, is not liable in any civil
proceedings for any injury caused to the patient.33
Am I always obliged to respond to an emergency, even if I don't feel confident?
Key points
Again, while the law is somewhat unclear, we believe that a hospital or health service
(and the health care professionals employed by it) should respond to an emergency. A
failure to respond could be found to be unreasonable in the circumstances and amount
to a breach of the duty of care.
In circumstances where a patient presents to a hospital or health service, the law is not
altogether clear as to whether the hospital/health service and/or clinicians at the hospital/health
service can refuse to respond, even if emergency hours are limited.
While the English courts have recognised a duty to treat in an emergency ward34 it is uncertain
which way Australian courts will go. It has been suggested that, if a hospital offers emergency
services, then this creates an expectation or reliance that these services will be provided such
as to create a duty of care.35 However, at the same time it has been recognised by the courts
that any duty owed by a public authority, such as a hospital, is only a duty to give proper
consideration as to whether to exercise that power, and not to actually exercise it.36
33 Wrongs Act 1958 Section 32B
34 Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428 (QBD)
35 Skene L. Law & Medical Practice. Rights, Duties, Claims & Defences. 2nd Edition 2004 at 73
36 Sutherland Shire Council v Heyman (1985) 157 CLR 424 per Mason J
22
This is not a question that can be answered conclusively, as there have been no cases to
point.37
In any event, the confidence or specific capability of a clinician is not relevant to the standard of
care they owe to the patient. An inexperienced clinician who undertakes a specific procedure
will be held to the same standard of care as a competent clinician; it is the act, not the actor,
which must meet the standard.38 Inexperience is not a defence, so that the standard of care
expected of a junior clinician is the same as that expected of a more experienced clinician: 'the
law requires the trainee or learner to be judged by the same standard as his more experienced
colleagues. If it did not, inexperience would frequently be urged as a defence for professional
negligence'.
39
If, however, a person is unsure of his or her capability and assistance is sought from someone
more experienced, then that standard is met.40
That is not to say that every health care professional is expected to be competent in all aspects
of practice, but certain areas will be 'part of the standard array of skills and knowledge that the
community is entitled to expect of every legally qualified [medical] practitioner'
.41 While it would
be reasonable to consider basic resuscitation, stabilisation and transfer of patients to be part of
the 'standard array of skills and knowledge' expected of a registered nurse providing
emergency care in a rural hospital or health service, each case will be regarded in the context
of the role adopted and the circumstances in which that role is played. It is not possible to
define an exhaustive list of all skills that would be expected.
A registered nurse providing emergency care in a rural hospital or health service with limited
resources and support would be judged, therefore, against the standard expected of a nurse
practising in similar circumstances. Whether a particular skill ought to have been within the
competency of that nurse will depend on the particular facts at hand. The nurse would not be
expected to practise with the highest skill, but with the ordinary skill of an ordinary competent
nurse in the context of rural emergency nursing.42
37 Skene L. Law & Medical Practice. Rights, Duties, Claims & Defences. 2nd Edition 2004 at 73
38 Wilsher v Essex Area Health Authority [1986] 3 All ER 801
39 Wilsher v Essex Area Health Authority [1986] 3 All ER 801 per Glidewell LJ. Although it has
recently been suggested by the District Court in Western Australia that a standard of a doctor ought
be measured against his or her qualifications or experience, a judgment in a District Court is not
binding. Further, this view was based on the dissenting judgment on this point in Wilsher, and
therefore does not follow the majority decision of the Court of Appeal in that case (which is binding):
Lawson v Minister of Health [2005] WADC 105
40 Wilsher v Essex Area Health Authority [1986] 3 All ER 801 per Glidewell LJ
41 Krishna v Loustos [2000] NSWCA 272
42 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121
23
Working as a team - what if I don't agree with the doctor's orders?
Key points
It is imperative to seek confirmation if an order does not seem appropriate.
Registered nurses have an independent duty of care. A registered nurse who followed
an order that the nurse knew, or ought reasonably have known, was incorrect is likely to
have breached the expected standard of care.
The care of the patient is the first priority. Health care professionals, hospitals and
health services should work together to agree protocols to be followed in the event that
there is a disagreement between health care professionals about the appropriate
management of a patient.
If a clinician is unsure of, or does not agree, with the orders of another experienced clinician, it
is imperative that they seek confirmation of the order
.43 A clinician should not allow
professional barriers, the hierarchical relationship that often exists in hospitals and health
services, or their own desire to appear knowledgeable and competent to prevent them from
questioning orders.
The Medical Practitioners Board of Victoria found that the conduct of a junior doctor fell below a
reasonable standard when she did not question an intravenous fluid order or clarify her
uncertainty about the order with a more senior doctor.44 The failure to question led to a neonate
being hydrated with 50% dextrose instead of 5% dextrose, resulting in severe brain damage.
The Board acknowledged that it would have been difficult for the young doctor to question or
challenge a consultant or, to a lesser extent, a registrar regarding an order which she found
unusual. However, it determined that:
'The public expects that junior and inexperienced doctors should realise that
they must check instructions about which they are uncertain, otherwise a
patient's care may be compromised.'
We consider that the same principle would apply to registered nurses who are uncertain about
a doctor's orders. In the case discussed above, the nurses did question the order for 50%
dextrose, but they questioned it of the junior doctor who confirmed the unusual order. Although
outside of the scope of the Board's determination, no criticism was made of the nurses in this
case.
The Code of Ethics for Nurses in Australia produced by the Australian Nursing and Midwifery
Council,
Value Statement number 5 is:
“Nurses fulfil the accountability and responsibility inherent in their roles.”
The explanatory statements which accompany this value statement include the following:
43 Medical Practitioners Board of Victoria re Dr Lea Lee Foo [2006] MPBV 15, Dr FGH [2006] MPBV
16, Dr CDE [2006] MPBV 17
44 Medical Practitioners Board of Victoria re Dr Lea Lee Foo [2006] MPBV 15, Dr FGH [2006] MPBV
16, Dr CDE [2006] MPBV 17
24
“Nurses contribute with other health care providers in the provision of
comprehensive health care, recognising and respecting the perspective and
expertise of each team member.
Nurses have an ethical responsibility to report instances of unsafe and
unethical practice. Nurses should support colleagues who appropriately and
professionally notify instances of unsafe and unethical practice.”
Registered nurses have an ethical obligation, therefore, supported by the Nurses Board, to
report their concerns if they do not agree with doctor’s orders.
If a nurse follows a doctor's orders which clearly are unreasonable, then the nurse could be
liable for the consequences.
