LEGAL ASPECTS OF COMMUNITY DEFIBRILLATION


The SARAH Act 2015 received its royal assent in April 2015. Adding to the area of protection for alayperson rescuer in an emergency, this new law will aid the development of community defibrillation and give reassurance to members of the public wishing to act and help in an emergency. However, the placement of a community defibrillator is not just about making sure legal aspects are addressed in the actual rescue. You need the right equipment, right governance, the right support and forethought about how best to cover yourself and the wider community when installing a medical device. Buying "cheap" may not always mean buying "best" or may leave some of these aforementioned aspects out entirely.

The community must also be aware of other areas of law that cover a community defibrillator. Hosting agreements need to be in place, as well as any relevant planning or conservation regulations. The community also has a Duty of Care to the public and also rescuers, and need to make sure provision is in place for PTSD, public liability, health and safety, etc. As the defibrillator carries known patient data, and you have a Duty of Care for the continuing care of the patient, you will need to have data download processes in place, that also take into account data protection regulations (Caldecott). Finally, the owners need to have in place a comprehensive package of policies and procedures to cover all eventualities. Also be prepared to prepare documentation on the complete provenance of the defibrillator in case of a Coroner/Sheriff enquiry. The local ambulance service will only cover ‘clinical liability’ for the period of the rescue only, assuming 999 has been called first. Working with CHT we address all of these for you.

Proceeding with a community defibrillator installation is a very beneficial project, but must be done right, with consideration for governance, to include liabilities, planning and other laws, addressing items such as disability access and regular maintenance. Defibrillators are medical devices to be used on people and committing to a project to provide one for the wider community should be done with eyes wide open with a
thorough understanding of the various potential liabilities and how to cover them. Enthusiasm sometimes gets ahead of compliance, or features of the equipment overtake practicality and realism.

There are for example over 14 different defibrillators you could use! Which ones are suitable for untrained people within communities? In reality, all manufacturers will claim theirs can be used by anyone, but consider things like disabilities, colour blindness, impaired hearing or vision, people with little understanding of English or units that don't advise on whether pads are attached or other measures that would hinder a lay person rescuer. What about storage? Is it BSI certified and electrically safe? Built by an ISO certified manufacturer? Provided by a knowledgable supplier?


SOCIAL ACTION, RESPONSIBILITY AND HEROISM ACT 2015 (SARAH)

The current law

If somebody causes loss or injury to another person during the course of an activity, it may be open to the injured party to sue them for damages for negligence or, in some circumstances, breach of statutory duty in the civil courts. The law of negligence is part of the Common Law, but there are some statutory duties of care that exist (for example the duty owed by the owner or occupier of land to visitors and trespassers) which work in a similar way to the law of negligence.

For a person to be found negligent or in breach of such a statutory duty the court must be satisfied that he or she owed the injured party a duty of care and that his or her conduct fell short of the applicable standard of care.

The standard of care which applies in a claim for breach of statutory duty depends on the wording of the duty in question. In a claim for negligence, a court considering such a claim will consider whether the defendant acted reasonably in all the circumstances of the case. The court looks at whether the person acted reasonably in all the circumstances against an objective test (‘the ordinary and reasonable man’) but what is in fact expected will vary from case to case. For example, the standard expected of a workman in a factory subjected to long hours and the slackening of attention which comes from constant repetition of the same operation is not so high as that of a reasonable man in more serene circumstances. In cases where the activity required particular skill case law has established that the actions of the defendant are to be judged against the ordinary and reasonable man with those particular skills.

In determining whether the standard of care was met in a negligence case, the courts look at a range of matters including the size of the risk, the likelihood of the risk happening, the gravity of the consequence and the cost and practicability of avoiding the risk. Where a defendant was acting in an emergency the courts make allowance for the need to act without time for reflection. The Compensation Act 2006, confirmed that, in considering what was necessary to meet the standard of care in a particular case, the courts can look at whether a particular requirement might prevent a desirable activity being carried out to any extent or discourage people from undertaking functions in relation to it.

Summary of the Act’s provisions SARAH

will not change the overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care. In any negligence/breach of statutory claim that is brought where the court is determining the steps a defendant should have taken to meet the applicable standard of care, it will be required to have regard to whether:

(1) the alleged negligence/breach of duty occurred when the defendant was acting for the benefit of society or any of its members (clause 2)

(2) in carrying out the activity in the course of which the negligence/breach of statutory duty occurred, the defendant had demonstrated a generally responsible approach towards protecting the safety or other interests of others (clause 3); and the alleged negligence/ breach of duty occurred when the defendant was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his own safety or other interests (clause 4).

The Government anticipates that SARAH will be relevant in a wide range of situations where people have adopted a responsible approach towards the safety of others during an activity, have being acting for the benefit of society or have intervened to help others in an emergency. It is intended to give reassurance to people that a court will take full account of the context of their actions in the event that they are sued.

It does not tell the court what conclusion it should reach and does not prevent a person from being found negligent if the circumstances of the case warrant it. Nor will it have any bearing on criminal liability. It does not absolve anyone from duty of carenor taking reasonable steps to ensure health and safety matters are addressed, nor any public liability.

Territorial extent

SARAH will apply in England and Wales only. The civil law in Scotland and Northern Ireland is the responsibility of the devolved Governments.

Commencement

SARAH was approved by Parliament, the Government and gained Royal Assent in April 2015 and commencement will be enacted as soon as possible. The Act will apply when the court is considering liability for alleged acts of negligence or for breaches of a relevant statutory duty which occurred after the date of commencement.

Disclaimer

Please make sure you have read and understood this disclaimer - It will be assumed that you have read prior to CHT receiving any request. CHT are not responsible for your fund raising, nor your cPAD operations, but may assist in both. CHTs only aim is to support the installation of a cPAD scheme in the most cost effective way possible adhering to Best Practice, and help save lives in your community. This website, and any downloaded information, is for information only on how to go about obtaining and installing a cPAD, and other relevant information. All copyrights and trademarks are recognised. All support for the cPAD will be undertaken by the village committee responsible and via standard manufacturers warranties. Any training organisation will only be responsible for the initial awareness training and not for the functioning or maintenance of the AED. Please do not send any monies to CHT until you have registered your scheme with us, and have agreement from the local ambulance service for the establishment of a cPAD scheme. All schemes must be registered with the local ambulance service (CHT will also undertake this or you can do via this site, but this does not remove responsibility for you to notify the local ambulance service of your AED location). 999/112 (ambulance) must always be called prior to using a cPAD equipment. VAT may be applicable if your organisation is not an eligible body as defined by HMRC. All current or historical claims for VAT will be met by the local community. All schemes will be asked to sign an agreement taking responsibility for their own fund raising and donations to CHT, and then the operation and maintenance of the cPAD equipment. All CHT provided schemes will need to manage their maintenance through the WebNoS online system as a condition of CHT support. It is your responsibility to maintain the equipment in working order and to make sure the local ambulance service is aware of this. WebNoS makes this possible and also acts as an audit trail for management of the equipment. Sites provided by CHT and not using WebNoS may be disengaged from the ambulance service CAD systems. Any web site showing defibrillator locations is for information only, and should not be used in preference to dialling 999. CHT works in close cooperation with the UK ambulance services. Always dial 999 in an emergency

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