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Legal considerations prior to giving emergency medical care

This is an excerpt from StarGuard: Best Practices for Lifeguards, Fourth Edition by Jill White.

Legal Considerations

During an emergency, certain legal principles apply regarding what you are expected to do in the United States. These principles include the following:

  • Duty to act. If you are a lifeguard expected to give emergency medical care, including CPR, you almost certainly have a duty to act. However, emergency care performed voluntarily on a stranger in need while you are off duty is generally considered a Good Samaritan act.

Duty to act is a requirement to act toward others and the public with the watchfulness, attention, caution, and prudence that a reasonable person in the same circumstances would use.

  • Good Samaritan principle. Since governments encourage people to help others, they pass Good Samaritan laws (or apply the principle to common laws). These laws prevent a rescuer who has voluntarily helped a stranger in need from being sued for wrongdoing. You are generally protected from liability as long as you are reasonably careful, act in good faith (not for reward), and do not provide care beyond your skill level. If you decide to help an ill or injured person outside your job, you must not leave that person until someone with equal or more emergency training takes over (unless it becomes dangerous to stay).
  • Consent. A responsive adult must agree to receive care. To get consent, first identify yourself. Then tell the victim that you are a lifeguard and ask if it’s OK to help. People over the age of 18 may give oral or written consent or give consent by gesturing.
    • Implied consent means that permission to perform care on an unresponsive victim is assumed. This is based on the idea that a reasonable person would give permission to receive lifesaving first aid if he were able.
    • When caring for children, you should gain consent from a parent or legal guardian. However, when a life-threatening situation exists and a parent or legal guardian is not available, give first aid care based on implied consent.
    • When caring for older adults, you must keep in mind that if they are suffering from a disturbance in normal mental functioning, such as Alzheimer’s disease, they may not understand your request for consent. Consent must then be gained from a family member or legal guardian. Again, when a life-threatening situation exists and a family member or legal guardian is not available for consent, give first aid care based on implied consent.
  • Confidentiality. A person has the right for her name and medical history to remain confidential among care providers. Care providers may share only information pertinent to medical care. The regulation in the United States that governs confidentiality is the Health Insurance Portability and Accountability Act, which is commonly referred to as the HIPAA law.
  • Standard of care. This is the level of emergency care that you are expected to provide, based on the level of your training, and with a response that a reasonable person in the same circumstances would use. If a person’s actions do not meet this standard, then the acts may be considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
  • Negligence. This occurs when an injured or ill person incurs proven damage from a trained person who has a duty to act and the person does not uphold the standard of care.
  • Refusal of care. A person older than 18 can refuse treatment and care if he is alert and oriented to the surroundings.
  • Advance directives, living wills, and do not resuscitate (DNR) orders. These are documents authorized by law and are usually witnessed or notarized. The documents allow a person to appoint someone as her representative to make decisions on resuscitation and continued life support if the person has lost her decision-making capacity (e.g., if she is in a coma). Advance directives are statements about what victims want done or not done if they can’t speak for themselves. The DNR is a type of advance directive. This is a specific request not to have CPR performed. In the United States, a doctor’s order is required to withhold CPR. Therefore, unless the victim has a DNR order, emergency care providers should attempt resuscitation. Victims who are not likely to benefit from CPR and may have a DNR order include those with terminal conditions from which they are unlikely to recover. Outside the hospital, rescuers should begin CPR if there is a reasonable doubt about the validity of a DNR order or advance directive, the victim has changed his mind, or the victim’s best interests are in question.
  • Documentation. All emergency care provided must be recorded in writing. This document serves as a medical record and legal documentation.

Learn more about StarGuard: Best Practices for Lifeguards, Fourth Edition.

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