Implied Consent or Principle of Necessity?

first aider assessing a casualty

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 Alternately, call us on 1300 990 336 or email us at [email protected]

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Brendan Day Chief Executive Officer
Brendan Day, based in Sydney, is a WHS and Emergency Management expert with a rich background in emergency services, including significant experience as a military firefighter, emergency responder, and emergency response manager. His career spans across both public and private sector roles, where he has developed and implemented comprehensive WHS management and Emergency Management systems. As the CEO and Principle Trainer at Intrinsic Safety, Brendan combines his military discipline with modern safety practices, offering advanced training in workplace health, fire safety, confined spaces, height safety and first aid. His qualifications, including a Diploma of Work Health and Safety, reflect his commitment to safety excellence and continuous improvement in emergency response management and safety practices.
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