A nurse at a railway station notices a man close to the line and fears he intends to jump. Does the nurse have a duty of care to stop him jumping in front of a train?
The law does not recognise any duty to volunteer help. Only if there is a duty of care would one person be under a duty to rescue another. A skilled swimmer can walk past a lake ignoring the fact that a person is in danger of drowning and seeking help. However, if that swimmer has a duty of care to the drowning person, such as arises from being in charge, being a coach or having another form of responsibility, then all reasonable action must be taken.
In law, therefore, a nurse does not have a duty to prevent the person from jumping in front of the train.
However, the NMC code of professional conduct states: ‘In an emergency, in or outside the work setting, you have a professional duty to provide care. The care provided would be judged against what could reasonably be expected from someone with your knowledge, skills and abilities when placed in those particular circumstances.’
What if a nurse were injured in coming to the rescue of a person? A person whose negligence has led to a situation where rescuing is necessary owes a duty of care to a potential rescuer. Those who deliberately put themselves in danger theoretically have a duty of care to those trying to rescue them.
A nurse who was pulled onto the track and injured when attempting to save a would-be suicide could in theory sue the person. However, it is more likely the nurse would seek compensation under the Criminal Injuries Compensation Scheme since it is a criminal offence to trespass on the railway.
An employer may not accept vicarious liability for the actions of a nurse who was mistaken over a person’s intent and caused them harm as the actions would not be taken in the course of employment. The nurse may then have to pay any compensation personally or through insurance from a professional association.
The NMC is revising its code of professional conduct. It would be helpful if it clarified nurses’ duty to volunteer. The draft code begins: ‘You have a duty of care at all times and people must be able to trust you with their lives and health.’ This is surely too wide a remit.
Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd