Dr Richard Tjiong – Doctors’ Duty in Medical Emergencies

The medical profession has generally been held in high regards throughout the world, largely because of the humanistic and caring nature of the services they provide and their commitment to put the interest of their patients first and foremost. This commitment and the corresponding community expectation are founded on medical ethics and enforced within their licence to practise. Aspects of the English common law[i] also bind them to these obligations.

There is little dispute as to whom they owe their obligations to whilst they are on duty. When it comes to their obligations while they are off duty in situations of medical emergency, the licensing boards and the common law seem to have differing approaches.

Hippocratic Oath and Medical Ethics

For over two thousand years, the Hippocratic Oath has formed the basis for the codes of ethics for doctors in most of the western world. In 1949, the General Assembly of the World Medial Association formulated its own code and adopted the following wordings: “A physician shall give emergency care as a humanitarian service unless he/she is assured that others are willing and able to give such care.” National Medical Associations in constituent countries have incorporated this principle in their Codes of Conduct.

The British General Medical Council has this to say: “You must offer help if emergencies arise in clinical setting or in the community, taking account your own safety, your competence and the availability of other options for care.”

The Australian Medical Council and the Medical Board of Australia adopt identical statement at paragraph 2.5 of their Code of Conduct: “Good medical practice involves offering assistance in an emergency that takes into account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.”

Licensing Board

In Australia, this ethical principle has been enshrined in Section 139C(c) of the  Health Practitioner Regulation National Law[ii] which states that a doctor may be guilty of unsatisfactory professional conduct if they refuse or fail, without reasonable cause, to assist a person in need of urgent attention.

In recent time, two cases are worth noting. The Medical Board of Australia found unsatisfactory professional conduct when a doctor denied that he was a doctor when asked by a stranger in need of urgent attention outside his clinic.[iii] However and in contrast, the West Australian Supreme Court of Appeal dismissed a finding of professional misconduct by the State Administrative Tribunal (of WA) when the doctor left a scene of accident at night without stopping to render assistance after a near miss, the doctor did not have a torch, any medical equipment or mobile phone, but she drove to the nearest police station and reported the accident.[iv]

The Common Law and a Doctor on Duty

The common law in England, Australia, Canada and the USA mandate doctors’ obligation to respond to medical emergencies while they are on duty- this means that over and above their duties to their existing patients, they do have a duty of care to their non-patient strangers who are attending their clinics or the hospitals in which the doctors are employed or when the doctors are visiting in their medical capacity.

In Australia, a doctor on duty may have a common law obligation also to attend non-patients in the streets or in public places in emergencies under certain circumstances. The NSW Court of Appeal set the precedent in 1996 in a well-publicised case of Lowns v Wood[v].

The facts established in the trial[vi] are as follows. Eleven years old Patrick Woods suffered severe neurologic impairment as a result of a prolonged epileptic fit while on holiday in the New South Wales Central Coast in 1987. His sister allegedly sought the assistance of a general practitioner, Dr. Lowns, who – the sister said – refused to attend. Dr. Lowns failed in his defence based on mistaken identity. Patrick’s lawyers were able to establish that at the time when Dr Lowns was approached, he was in his surgery ready to start the day’s clinic but with no other patient present, notwithstanding that the fact that his support staff had not arrived and his clinic was not yet open.

The common law of negligence is based on the existence of a duty of care between “neighbours”.[vii] The trial judge[viii] found that there is sufficient neighbourly relationship between Dr. Lowns and Patrick to create the legal obligation of a duty of care under the common law, and that Dr. Lowns had breached his duty of care by not attending Patrick. The judge found that Dr Lowns was:

“…at his place of practice… ready to begin his day’s work and not yet occupied in any other professional activity which would preclude his treating [Patrick]… What was asked of him involved no health or safety risk to himself; and he was not disabled by any physical or safety risk to himself; and he was not disabled by any physical or mental condition from travelling and treating [Patrick].”[ix]

The New South Wales Court of Appeal upheld the finding of the trial judge, with President Kirby and Cole JA concurring, and Mahoney JA dissenting.

Cole JA affirmed the trial judge’s observation that “[in] general, the common law does not impose a duty of care to assist a person in peril even when it is foreseeable that the consequence of a failure to assist will be the injury or death of the person imperilled” and that there are case law precedents to the effect that a doctor is under no common law duty to attend a person who is sick even in an emergency if that person is one with whom the doctor is not and has never been in a professional relationship.

However, Cole JA found that there was obvious “physical and circumstantial proximity” between Dr. Lowns and Patrick in that Dr. Lowns was directly requested for assistance and that there was no impediment for him to attend; the trial judge had also found that the administering of intravenous Valium would have ended the status epilepticus before the onset of brain damage. Cole JA found that all these elements matured into a legal proximity, which created a duty of care between Dr. Lowns and Patrick.

Kirby P agreed with the analysis of Cole JA. He added that the standard requiring a doctor to attend in an emergency is a high standard which goes far beyond what is expected of other professions, “[but] in the noble profession of medicine, it is the rule which parliament has expressed [in the Medical Practitioners Act], which the organised medical profession has accepted, and which Dr. Lowns himself has acknowledged and did not contest.”

Mahoney JA, in a dissenting judgment, states that moral and professional obligations alone are insufficient to extend the obligation into a common law duty. An obligation to attend an emergency on request needs take into account the professional qualification and skill of the doctor and the circumstances of the call. It would be inappropriate to enforce such an obligation by the law as it would have required many qualifications and exceptions.

While the courts extended the common law duty where Patrick was a stranger to the doctor, Dr Lowns was found in breach of his duty because, when approached by Patrick’s sister, he was already on duty in his surgery- Dr Lowns was in “a professional context”. Secondly, some medical commentators mistakenly consider the law as being peculiarly applicable only to courts in the State of NSW. The law was made by the Court of Appeal- the highest court in the state of New South Wales; its decisions bind not only the Supreme Courts (and other inferior courts) in that State, but these decisions are highly persuasive and virtually bind the Supreme Courts and other inferior courts in all Australian jurisdictions- they are also likely to be followed by the Courts of Appeal in the remaining states and can be displaced only by the High Court of Australia or by an act of parliament.

Summary and Conclusion

Attending emergencies when one is not on duty is essentially a Good Samaritan act. In Australia, the Civil Liability Act protects a Good Samaritan from liability in negligence providing the negligence is not gross.[x] The legislative protection was put in place so as not to deter a doctor from being involved as a Good Samaritan. There is therefore no excuse for a doctor not to respond in times of emergency where-ever the doctor may be and whenever the occasion is unless there is some mitigating circumstance.

Not to respond whether the doctor is on or off duty may invoke sanction by the Medical Board with possible consequences to their license to practise. Not to respond when a doctor is on duty or in “professional context” may involve an additional sanction by a common law court in an action for negligence, where the aggrieved patient may be awarded damages.

It seems that common law courts have so far not reached a doctor who is off duty and unwilling to be a Good Samaritan.  However, it is open for a court to extend this boundary in certain circumstances. What if the doctor is off duty but they make it known to world that he/she is  a doctor, such as when they board an aeroplane bearing the title “doctor” or when they innocently make a restaurant reservation in the name of a doctor, or when they simply drive around in a car bearing a doctor’s badge? In these circumstances, the court may take the view that they have held themselves out as a doctor with an implied offer of services and with all the attendant obligations- a court may find that they should act like a doctor by responding to an emergency, especially when asked to do so. The position of negligence law is less clear when a doctor is incognito while off duty but fails to respond to a call “is there a doctor in the house?” In these circumstances the doctor may still face disciplinary action by the licensing authority.

On the positive side, and given the protection by the law for Good Samaritans, a doctor should not hesitate to conform to their calling when facing an emergency- one can only do one’s best in the circumstance and wait for help.

Richard Tjiong,

MBBS (Syd.), FRACS, FRCSEd, Dip. Law (Barristers Admission Board), FACLM,

Sydney 18 February 2015.

[i]     Judge-made law in contrast to legislations made by parliaments.

[ii]     This section is quoted from the NSW legislation, similar enactments exists in other Australian jurisdictions.

[iii]    Hoffman v Medical Board of Australia [2012] WASAT110.

[iv]    Dekker v Medical Board of Australia [2014] WASCA 216.

[v]     Lowns v Woods (1996) Aust. Torts Reports 81

[vi]    Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J at the trial).

[vii]   While this concept is derived from Biblical principle “thou must love thy neighbour”, the court defines who the neighbours are for the purposes of negligence law.

[viii]   Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J at the trial).

[ix]    Ibid 360.

[x]     Civil Liability Act (2002) NSW ss55-58; other states and territories have similar enactments and provisions.

Dr Richard Tjiong