New Year brings with it splendid new opportunitiesJanuary 4, 2016 10:46
Good Samaritan principles in the UAE: Legal liabilities when administering first aid
By Rebecca Kelly, partner at Clyde & Co
June 4, 2014 11:56 by kippreport
The Good Samaritan principle means a range of different things around the world, both in accordance with legislation and customs and practices. It is human nature to want to help another that needs medical assistance, but in today’s society, there is an understandable concern that individuals that attempt to help another may be at risk of having a claim brought against them if that person suffers harm as a result of their intervention.
The following article discusses whether a Good Samaritan principle can be applied in the UAE, both from the perspective of rescuers and safety officers.
There is often confusion as to what the legal liability will be in UAE when a person administers first aid and what, if any, the legal consequences will be if the injured person dies as result of their injuries. In this legal update, we address the following three points, in accordance with the UAE laws and shari’a laws:
Is the concept of a Good Samaritan recognised within the UAE?
Can a person who administers first aid be held legally accountable for any subsequent injuries and/or causing death in the event the injured person dies?
What is the recommended approach for the delivery of first aid in the UAE?
The Good Samaritan principle
While the origins of the Good Samaritan principle are based on a religious parable, over time, it has developed to include rescuers and first aid officers administering first aid in the aftermath of an emergency. Various authorities around the world have established legal precedents, where the law does not require a member of the public to act as a Good Samaritan. However, if a person chooses to do so, then, in most jurisdictions, the law offers protection to the Good Samaritan from civil compensation claims and/or criminal cases, except to the extent that their own acts caused damage beyond that which the injured would have suffered if the Good Samaritan had not intervened.
“There is, happily, in all men of goodwill, an urge to save those who are in peril.”1
Within the UAE, a question often asked in respect of this goodwill is whether or not an individual will be held legally liable (and face imprisonment and/or civil responsibility for the payment of ‘diya’ or ‘arsh’) for contributing to someone’s death or injuries if they have provided assistance to that injured person. So, while it is human nature to want to help another that needs assistance, in today’s society, there is an understandable concern that individuals who attempt to help another may be at risk of having a claim brought against them if that person suffers harm as a result of the intervention. Understanding how the UAE laws treat individuals that offer first aid (either in their professional capacity or in rescue circumstances) is important.
UAE law considerations
The UAE does not have a stand-alone Good Samaritan law, unlike other jurisdictions. Over the past few years, there have been news reports of a draft law under consideration, but as [of now], no such law has been published. If a Good Samaritan law were to be enacted in the UAE, it would be the first of its kind in the GCC region.
Typically, the key provision contained in Good Samaritan laws provides legal immunity for those individuals that administer first aid in a rescue situation, when they acted in good faith and without remuneration. Of course, other considerations include the informed consent, parental rights and the right of the victim to refuse treatment.
In the UAE, pursuant to articles 342 and 343 of the Penal Code (Federal Law No. (3) of 1987 as amended), a person may be punished if they cause the death or injury of another person. In accordance with the Penal Code, causation can attach where the person “refrained, at that moment, from helping the victim… in spite of the fact that he was capable of doing so” or “if the crime was committed as a result of the offender’s failure to perform the duties imposed on him in the performance of his function, profession or craft…”
However, pursuant to article 52(3) of the Penal Code, no crime is committed where medical treatment is performed in accordance with generally accepted scientific principles and with the express or implied consent of the patient or if medical interference is required in emergency cases. Therefore, no criminal liability will attach to an individual performing first aid in a rescuer situation, as long as the conditions of article 52 of the Penal Code are met.
Shari’a law considerations
Based upon a Fatwa authored by the Official Iftaa Centre, General Authority of Islamic Affairs and Endowments on First Aid Procedures in 2010 (First Aid Fatwa), first aid must be administered by all people in accordance with the Shari’a law.
The Fatwa states (as translated): “Islamic Shari’a is based upon the five necessities, one of which concerns the preservation of one’s life and property. Therefore, the provision of first aid can be seen as both an Islamic duty and a humanitarian necessity, as first aid is administered to save people’s lives and relieve their pain. Any trained medical person, particularly in emergency situations, ‘do their best efforts’ to prove immediate relief and this is supported by the general provisions of Shari’a that call for co-operation, helping the needy and relieving inflicted people.” Therefore, in accordance with the Fatwa, no criminal liability will attach to an individual, in respect to both Shari’a laws and UAE laws when they perform first aid. The opposite is true; those that do not assist when they witness a person suffering can be held criminally accountable.
Immunity from prosecution
“It is true that, while the common law imposes no duty to rescue, it does impose on the Good Samaritan the duty to act with due care once he has undertaken rescue operations. The rationale is that other would-be rescuers will rest on their oars in the expectation that effective aid is being rendered.”2
While the citation above is the US judicial obiter dicta, it is similar to the UAE position. The UAE legislation and shari’a law principles cited above should not be interpreted to suggest that a rescuer is expected to be competent to treat someone suffering from a heart attack and that, if they fail to do so, they will be held responsible in the event of the individual’s death. Rather, the rescuer should seek medical assistance for the victim as soon as possible in order to discharge their duty.
A first aider or safety officer should not be afraid to do their job for the fear of legal repercussions. If a first aider witnesses an accident at work and fails to do anything to help and, the victim dies or is seriously injured, then they may find themselves falling foul of the Penal Code. However, where they administered first aid, within their competence, and then took the necessary steps to seek external expert medical assistance where required, criminal liability should not attach to that person, should the first aid not be enough to save or treat the patient.
It is essential for companies with an in-house first aid capability to ensure that the persons are suitably trained and have the necessary equipment and resources at their disposal in case of an accident or incident. The UAE Federal Labour Law (Federal Law No. (8) of 1980 as amended) (Labour Law) and Ministry of Labour Decisions No. (32) and No. (37/2) of 1982 specify the minimum requirements for first aid supplies, but companies are free to (and arguably should) adopt a higher standard and can include additional supplies. By way of example, the Labour Law does not require companies to have a defibrillator, but if a company chooses to install one, then they must also ensure their staff is suitably trained to operate it.
The First Aid Fatwa outlines whether or not a nurse (and the same test will be applied for safety officers) will be held accountable for the death of a patient, if the patient dies after the safety officer has administered first aid. In particular, the First Aid Fatwa concludes: “If a complaint is lodged after an incident, the judge investigating the whole situation will determine how properly the first aid officer performed their job.”
Therefore, while we can seek guidance from the UAE law and the Shari’a law, it will only ever be up to criminal court judge to determine the level of accountability and this decision will focus on whether the individual performed their job properly (or refused to perform their job) and provided adequate first aid in the circumstances.
Questions often arise as to whether there are religious or gender-based restrictions on who may provide first aid to whom. As the UAE law does not address cultural issues that may arise when a rescuer or safety officer administers first aid, we can only take guidance from the First Aid Fatwa. The First Aid Fatwa deals with both questions (i) whether it is permissible in accordance with the shari’a Law for a non-Muslim to administer first aid to a Muslim and (ii) also whether a male may administer first aid to a female. Both are answered in the affirmative that is that anyone can administer first aid in situations where there is an emergency and they will not be punished for doing so in circumstances where they are of a different religion or different gender to the injured person.
In practice, however, companies should ensure that where employees have a particular objection with respect to who may administer medical treatments, such information is clearly recorded in their files.
Recommended approach to first aid
Provided persons act within their competencies and take reasonable and proportionate measures when an accident occurs, then the Good Samaritan should not fear adverse legal consequences in the UAE. If an emergency arises, and the first responder is not medically trained, then they are under a positive obligation to seek immediate medical assistance. No one should ignore another man’s peril, as that will be against Shari’a principles and the UAE laws.