Often in First Aid training you hear the term ‘implied consent’ applied to situations where a casualty is unconscious. But is this the correct term?
Consent may be express or implied. To satisfy the definition of express consent in a first aid situation, the patient would have to, after being informed of the intended treatment and risks, explicitly agree to receiving the treatment.
Alternately, ‘Implied Consent’ only arises where the patient cooperates with the first aider, does as they are asked and assists in their own treatment.
The general principle in law is that you cannot get implied consent from a person from whom you cannot get actual (explicit/informed) consent.
Here we turn to the legal principle or doctrine of necessity. To satisfy the principle of necessity the following conditions must be present:
- There must be a necessity to act when it is not practicable to communicate with the assisted person,
- The action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.
The ‘Good Samaritan’ laws are premised on the principle or doctrine of necessity. It justifies the delivery of treatment that is reasonable and in the patient’s best interests when the patient is unable to communicate or form their own wishes.
The Australian Emergency Law blog expresses it succinctly:
For years (and no doubt still) first aid instructors have said that once the person is unconscious you can rely on ‘implied consent’ to treat them. As the discussion of the legal principles above show, that is not correct…
If you would like to know more or would like our assistance in the areas mentioned check us out at www.intrinsicsafety.com.au. Alternately, call us on 1300 990 336 or email us at [email protected]
