David Osborn examines the legal arguments – both in civil and criminal law – that practitioners may encounter for and against the introduction of Automated External Defibrillators (AEDs) in the workplace.
As health and safety practitioners, we each share a commitment to preventing death, injury and ill health in the workplace. But the measure of our success (or otherwise) is often some abstract, nebulous statistic, such as a reduction in accident rate from one year to the next.
It’s not often that we can go home from work content in the knowledge that, owing to measures we have helped introduce, a person is still alive who otherwise would undoubtedly have died. Such would be the case where an employer has followed a practitioner’s advice to install an AED, which has subsequently been deployed on a person suffering cardiac arrest and saved their life.
A recent IOSH survey of 1000 businesses found that more than half did not possess these life-saving devices, and two thirds of those were medium-sized to large companies (see Interface, p23).1 It is surely ironic that, in a profession that dedicates so much time, energy and money to saving lives, we appear to be overlooking something which, at quite modest cost, could possibly save more lives every year than the rest of our efforts put together.
Building on two previous articles in SHP – on the medical issues involved with sudden cardiac arrest and the need for more effective first-aid provision2,3 – this article aims to highlight some of the legal issues surrounding provision and use of AEDs, as well as outline some of the factors that should be taken into account when assessing first-aid needs in respect of cardiac emergencies.
Civil law
In the United States, there have been multi-million-dollar lawsuits in which the organisations in question failed to provide and/or use AEDs, and a member of the public died.4 No cases have yet been brought against organisations in the UK for not providing AEDs, so the expectations of British courts regarding an organisation’s duty of care to a member of the public sustaining cardiac arrest will only be revealed if and when a test case is brought.
In the workplace, however, it is likely that an employer is more vulnerable to liability. If there is a proven link between the work a person does and an increased risk of cardiac arrest, a court might well expect the employer to have had the necessary resuscitation equipment readily available to help save that person’s life.
Although relating to a sporting injury, the decision in the case of Watson v British Boxing Board of Control5 may also be relevant to the workplace. After suffering a brain haemorrhage during a boxing match, Michael Watson lapsed into a coma and was wheelchair-bound for six years. The Board had breached its duty of care by failing to have the necessary medical equipment immediately available to resuscitate Mr Watson – in this case, intubation and administration of oxygen – which would have avoided, or reduced the brain damage he suffered. The delay in resuscitation was a key factor in the harm Mr Watson sustained.
It does not take a leap of imagination to see how this case might be deployed in the situation of an employee who, having been exposed to a known work-related cardiac risk, suffers sudden cardiac death where no AED was readily available to attempt resuscitation. Some employers (and even some occupational-health practitioners) have been known to take the stance that having first-aiders trained in CPR is sufficient. This is a misguided and dangerous assumption (see ‘The medical expert’s view’, opposite).
Statutory law
There is no legislation in the UK that explicitly requires an employer to provide defibrillators (see ‘The lawyer’s view’, opposite).
The Health and Safety (First-Aid) Regulations 1981 and their Approved Code of Practice provide good guidance on the factors an employer should consider when assessing first-aid needs.
Understandably, the first items on the ACoP’s list focus on “the nature of the work” and “workplace hazards and risks”. Dr Michael Colquhoun has identified a diverse range of workplace hazards associated with cardiac emergencies, including stress, shift work, electric shock, and various substances such as carbon monoxide, which may arise from vehicle exhaust, boilers and other combustion processes. There will be very few organisations that can claim to be free from all the above common hazards.
Another item on the list is “the remoteness of the site from emergency medical services”. More first-aid provision might be needed on site if a patient has to be stabilised while waiting for an ambulance to arrive from some distant location. Sometimes it is mistakenly thought that, if a site is close to an ambulance station or hospital, then less first-aid provision is required; when it comes to emergency cardiac response this is a very unwise assumption to make (see ‘The emergency responder’s view’, overleaf).
The ACoP also states that if an employer knows of employees with particular health problems then they should “consider the need for additional first-aid equipment and local siting of that equipment”. Organisations with employees who have known heart conditions should take note.
Practitioners are well aware of the fundamental principle underpinning health and safety law, which is to do everything that is “reasonably practicable” to ensure workers and others are protected from an employer’s activities. We therefore need to consider how this principle might apply to defibrillators.
The term “practicable” means “within man’s knowledge and invention”. This means that employers must keep up to date with current technology and trends. There is an undeniable trend in the community as a whole to make defibrillators more widely available. Therefore, a court might expect that the industrial and commercial community would follow this trend.
As practitioners all know, the “reasonable” element of this phrase allows the potential safety benefit to be balanced against cost. This means that the more severe the potential outcome of a hazard (with death being the most severe), the more time, trouble and expense an employer should take in order to prevent, or mitigate that hazard.
Following a work-related cardiac death, especially in circumstances in which an employee was at increased risk of cardiac arrest, any plea that the life-saving equipment was unaffordable would most likely be dismissed by a court, given the relatively modest cost of AEDs in relation to their potential benefit.
Liability and training concerns
In the process of introducing defibrillators into the workplace, practitioners and employers may encounter staff, first-aiders or, indeed, senior management with concerns about personal, or corporate liability. Their most obvious and understandable worry is what might happen if an attempt at defibrillation fails and the casualty dies.
For a claimant (or their estate) to succeed, they will need to show that the person using the device was negligent. No such cases have yet been brought to court, but the Resuscitation Council UK has considered this issue in its document, ‘The legal status of those who attempt resuscitation’,6 which states:
“A person who attempts resuscitation will only be legally liable if the intervention leaves a person in a worse position than he would have been in had no action been taken. It is difficult to see how a rescuer’s intervention could leave someone worse off since, in the case of cardiopulmonary arrest, a victim would, without immediate resuscitation, certainly die.
“Furthermore, if an AED is being used, it will only permit the administration of a defibrillatory shock when its sophisticated electronic algorithms determine that ventricular fibrillation is present and, since patients in this state are clinically dead, it is unlikely that any intervention with this device could make the situation worse.”
Hopefully, this guidance will allay the concerns of individuals and organisations about the potential for being sued.
Nevertheless, when defibrillators are provided, attention should be paid to training, inspection and maintenance regimes, emergency procedures, means of communication, and placement of defibrillators in accessible locations. Exercises should be carried out in order to verify that the device can be deployed within a few minutes under all foreseeable circumstances, and each organisation would need to set its own target for response times. In deciding these, it should be considered that survival rates beyond 10 minutes are very poor.
Ideally, the defibrillator will be used by a person who has been trained – generally, a first-aider. However, if the circumstances of the emergency are such that no trained person is available, anyone (regardless of training) should be free to use it, thereby saving precious time and increasing the victim’s chances of survival. Instructions are simple to follow and usually given audibly by the machine itself, as shown in the Resuscitation Council’s video demonstration of a defibrillator in use.7
All staff should be told that they are authorised to use the device under these circumstances, and that they are covered by the organisation’s insurance. Of course, this should be confirmed with the insurers, but it would be surprising if they objected, given the Resuscitation Council’s authoritative and unambiguous guidance8 on the matter: “An AED can be used safely and effectively without previous training. Therefore, the use of an AED should not be restricted to trained rescuers.”
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The lawyer’s view
Under both the law of negligence and the Health and Safety at Work, etc. Act 1974, employers (and non-employer voluntary organisations) owe a variety of duties of care to employees and others who might reasonably be affected by the conduct of their business, or undertaking.
To avoid civil liability for negligence, the standard of care expected is one of reasonable care, while the criminal law imposes a positive duty to ensure a person’s health and safety, unless the risk to health or safety is managed to as low a level as possible and taking additional steps would not be reasonably practicable.
The legal framework does not expressly require that an employer or other organisation provides AEDs in any of the premises from which it operates. However, it would be prudent for every organisation to consider, as part of its risk assessments, whether the provision of AEDs is reasonable.
While cardiac arrest is a common, everyday risk there may be some situations in which criticism might be more readily advanced of an organisation if a properly undertaken risk assessment would have reached the view that a given work environment significantly increases the likelihood of a cardiac arrest, and the provision of AEDs would be reasonably practicable as part of an organisation’s overall first-aid provision.
In the absence of an express legal requirement for AEDs to be provided, the position is likely to be that it will always depend on the facts of any particular case. The best protection for any organisation will always be a risk assessment (whether this results in having AEDs, or not) and the need to keep the assessment under review to take into account technical developments, changes in expectation, price changes, changes in demographics, or work activities that might render them more necessary.
Kevin Bridges, partner, Pinsent Masons LLP
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The medical expert’s view
Most cases of cardiac arrest are due to ventricular fibrillation, a condition where the electrical control of the heart becomes disorganised.
Electrical defibrillation, the administration of a high-energy shock from a defibrillator, is the only effective therapy for cardiac arrest caused by ventricular fibrillation, or pulseless ventricular tachycardia. Cardiopulmonary resuscitation (CPR), on its own, will not restart a heart in this condition – it just buys time until an AED can be deployed.
The scientific evidence to support early defibrillation is overwhelming. The delay from collapse to delivery of a shock is the single most important factor influencing survival. If defibrillation is delivered promptly, survival rates as high as 75 per cent have been reported.8 The chances of successful defibrillation decline at a rate of about 10 per cent with every minute that a shock is delayed. After 12 minutes, the survival rate is less than 5 per cent.
Most cases of ventricular fibrillation are associated with coronary artery disease – narrowing of the arteries that supply the heart with blood. The early stages of myocardial infarction (a heart attack) are a particularly dangerous time.
Work factors known to increase cardiovascular risk include extreme heat or cold, shift work, stress and substances such as carbon monoxide, carbon disulphide and halogenated hydrocarbons. Electric shock can also cause cardiac arrest.
Any assessment of first-aid needs that failed to consider these risk factors would be wholly inadequate.
Dr Michael Colquhoun BSc FRCP MRCGP DipIMC(RCS Ed), executive member of the Resuscitation Council (UK) and chair of the Basic life-support/AED sub-committee
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The emergency responder’s view
In recent years, ambulance services have invested significantly in technology and made huge improvements in planning and allocating resources – all to help them reach life-threatening medical emergencies as quickly as possible.
However, for a patient suffering a cardiac arrest, having access to an AED in the first couple of minutes – while the ambulance is en route – is key to their chances of surviving and, ultimately, recovering.
Cardiac arrest has no respect for age or gender and can strike anyone, at any time, without warning. Most people will know of close family members, or friends who have died as a result.
Since 2000, AEDs have been installed out in the community – for instance, outside community centres, village high streets, shopping centres, railway stations, airports, etc. The emphasis should now focus on industrial and commercial sites.
The number and visibility of public-access defibrillators is growing annually. Anyone installing these devices should also notify the ambulance service, so that anyone phoning 999 for a patient suffering a cardiac arrest can be made aware there is an AED nearby.
The ambulance service encourages businesses to be proactive about provision of first aid and, in particular, AEDs. Prompt action by the first person on the scene can truly make the difference in a life being saved.
Employers should consider the management of fire risks as an analogy. Fire extinguishers are a readily-accepted first response to an emergency. In principle, there should be no difference in the way employers view AEDs. It is also important for employers to notify the ambulance service if they have installed an AED.
Kevin Dickens, community first-responder manager of South Western Ambulance Service and a member of the Basic life-support/AED sub-committee of the Resuscitation Council
References
1 ‘Defibrillation can be the difference between life and death’, SHP Online February 2013 – www.shponline.co.uk/commentcommunity-content/full/defibrillation-can-be-the-difference-between-life-and-death
See also www.youtube.com/watch?v=_2s0KOCBLzQ
2 Beacham, D (2010): Shock value, SHP April 2010, pp50-52 – www.shponline.co.uk/features-content/full/heart-problems-shock-value
3 James, C (2012): Cut to the quick, SHP October 2012, pp52-54 – www.shponline.co.uk/features-content/full/emergency-services-and-first-aid-cut-to-the-quick
4 For example: http://newyork.cbslocal.com/2013/02/07/appeals-court-rules-negligence-lawsuit-against-li-gym-can-proceed
5 Watson v British Boxing Board of Control [2000] QB 1134 – www.bailii.org/ew/cases/EWCA/Civ/2000/2116.html
6 Resuscitation Council (UK): ‘The legal status of those who attempt resuscitation’, www.resus.org.uk/pages/legal.pdf
7 Extract from DVD for the CPR/AED training manual – www.resus.org.uk/cpraed/cpraedV2.htm
8 Resuscitation Council (UK) Guidelines 2010 – www.resus.org.uk/pages/gl2010.pdf
Further information
If independent, impartial and professional advice is required, practitioners are welcome to contact the ambulance service by e-mailing Kevin Dickens at [email protected] giving address and postcode. He will then route inquiries through to the appropriate regional ambulance service. St John Ambulance also publishes ‘Frequently Asked Questions’ on AEDs, which can be viewed at: https://www.stjohnsupplies.co.uk/downloads/FAQs_defibrillators.pdf
David Osborn runs his own health and safety training and consultancy business.
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