The Laws on Implied Consent
When we see someone in a life-threatening scenario, our innate response is to save them. This urge to help is especially important for medical emergencies, where performing the likes of CPR can mean the difference between life and death.
However, difficulties arise when faced with an unconscious woman in need of assistance. In today’s day and age, removing a woman’s bra for effective chest compressions and using a defibrillator can raise legal and ethical concerns. It has been proven that due to concerns of legal repercussions, people are less likely to give CPR to women than men.
Unfortunately, in support of this claim, there are real-world examples of where people have faced backlash for helping women in need. For example, in 2007, a man in California saved a woman from drowning in the sea and was sued (unsuccessfully); in 2014, a man in Japan was branded a ‘pervert’ and heckled in the street whilst attending to a woman in need; in 2021, a woman alleged that a man sexually assaulted her whilst rescuing her from drowning in a swimming pool and tried to sue him.
In situations that require the use of a defibrillator and CPR, the primary concern is the well-being of the individual in need. English and Welsh law generally allows individuals to provide emergency medical assistance without fear of legal consequences. However, the actions of the Good Samaritan must be reasonable and proportionate with the aim of saving a life or preventing serious harm.
When it comes to a scenario with a woman who is not breathing, there are additional issues concerning the removal of underwear. At the heart of this discussion is the legal concept of consent and whether an unconscious / non breathing person implies it.
English and Welsh law recognise the principle of implied consent in the event of providing emergency medical assistance where a person is unable to give explicit consent. This means that a reasonable person would assume that the unconscious person would consent to medical assistance if they were able to do so.
Whilst implied consent can also apply to the removal of clothing (like a bra), it still remains a sensitive and contentious issue. Therefore, it is vital to establish whether removing the clothing is necessary to perform medical assistance or if there is an alternative available. Actions that would typically be seen as illegal, such as removing clothing without explicit consent, can be justified in an emergency when deemed necessary.
This is crucial when it comes to removing a bra to use a defibrillator – especially if it contains metal. The bra can interfere with the proper placement of the defibrillator pads, and the metal wire may cause inaccurate readings, leading to the defibrillator not being fully effective.
It is important to note that if only CPR is being performed, a women’s bra does not and should not be removed. However, these situations are often unpredictable and the type of assistance needed can quickly change, meaning a lifesaver needs to adapt to the situation as it unfolds. For example, a lifesaver may not need to take off an item of clothing to begin with, but as the situation develops, they may need to remove some to provide more substantial first aid. In these scenarios, the issue of implied consent will arise.
Administering CPR carries the risk of causing harm, leading people to feel concerned that they may face legal liability for negligence if they cause any. For their actions to fall under negligence, a person must have owed a duty of care to another and then breached that duty, which in turn results in harm. However, a person who acts as a Good Samaritan and assists in an emergency is generally not held to the same standard as a medical professional, such as a doctor or nurse.
Instead, the Good Samaritan is expected to act reasonably and, in such a context, removing a piece of clothing to facilitate necessary care would be considered a reasonable action. It is important to note that a person will only be deemed negligent if their actions were grossly negligent or reckless.
If there is a genuine belief that a bra or other item of clothing is obstructing effective CPR, and it is removed in attempts to save a life, it is likely that such an action would be protected under the principles of implied consent and necessity.
Moreover, the Social Action, Responsibility, and Heroism Act 2015 (“SARAH 2015”) was specifically enacted to offer legal protection and acknowledgement to those who undertake acts of social responsibility or heroism under particular circumstances. SARAH 2015 was introduced with the primary goal of shielding Good Samaritans from potential legal consequences in case of unforeseen outcomes. The act applies when an individual has intervened and provided medical assistance – but only if their actions were socially responsible.
There is yet to be a case (within the jurisdiction of England and Wales) that has held someone legally liable for the removal of a bra when administering CPR or using a defibrillator. To ensure that you understand how the situation can differ, here are some possible scenarios that you may find yourself in:
- A person can only be given CPR because a defib is not accessible – you do not need to remove any of the women’s clothing unless they restrict them from breathing.
- A person has CPR and the use of a defibrillator – you can remove clothing and bra to allow the pads to be placed correctly, ensuring that any metal on the bra does not interfere with the defibrillator. In this scenario, the woman gives implied consent as she is unable to give explicit consent. If you face any backlash, you can rely on SARAH 2015 – as long as your actions were socially responsible and only for the purpose of preserving life.
- A person does not require CPR , you should not remove any clothing unless they restrict the breathing. As the rescue develops and CPR and a defibrillator is required, clothing can then be removed. With regards to consent and possible back lash, if your actions were socially responsible and with the goal of saving life, SARAH 15 will protect you.
When you see someone in need, your first thought should not be about any potential legal backlash. If you intend to save their life, and you are acting reasonably, the law will defend your actions.
Credit: Britton & Time Solicitors
https://brittontime.com/
Educating men and women on the importance of using a defibrillator safely and to encourage them to remove the bra in an emergency to increase the chances of survival.
