I touched on some of the ethical issues raised by the course in my last post, vis a vis when to treat someone and when to move on. The situation does implicate some legal issues with respect to abandonment of a patient, because once you undertake a rescue you take on a duty to the person. It seems though that triaging may not necessarily be a rescue itself, but once you take steps to extricate someone that might.
On the other hand, these legal considerations were not significantly discussed in our training, and maybe that's just as well. The goal really should be to save as many people as possible, not to worry about lawsuits. Something is wrong with our legal system when people end up dying because people rightly are reluctant to even try the rescue for fear of being vulnerable to suit. While you wouldn't want a careless rescue (which can do more harm in good) you probably would want to encourage, and at least not discourage, reasonable attempts.
Still, I'm left with the concern that by having done the training I may in fact already have picked up an affirmative duty to do something in case of emergency (though what exactly I'm not really sure) by virtue of the document we signed at the end. The upside to the document is that it means that if we do perform a rescue under the auspices of our training program we will be considered employees of the state and (a) protected (insured?) against liability, and (b) covered by worker's compensation if we're injured in the course of our work. All that is very nice, although I do wish we were told more about it. The lawyer in me gets very nervous when duties, obligations and indemnities are left unspecified.
And there was another seemingly strange feature to the document: the state loyalty oath. In a sense it's not strange. I've seen it every time I've gotten on payroll at UC Berkeley because it's something that every state employee is required to sign. I think this oath is hugely problematic for many reasons, not the least of which being that it's ridiculous to require from non-US citizens, who may still be appropriate candidates for the work they are being hired to do yet not be in a position to swear loyalty to a state and country not their own.
It is furthermore absolute lunacy to require it from volunteers. At least if it was a paying job the non-US citizen could decide that the paycheck made the oath worthwhile (although I doubt any in such position would take the oath with any sincerity. In fact, I doubt any coerced American citizen does either) but in the case of this training these are volunteers who simply want to assist the community they live in. Talk about demanding a pound of flesh, but what is the point of doing that? We should want every able-bodied person to step up to support their neighbors. Why on earth would be want to require an oath of loyalty before letting them? Do we think that without the oath they might not put their backs fully into it when they raise wreckage from a wounded body? Or that they might insincerely spray the fire extinguisher to suppress a fire? Is there really some correlation in the amount of bravery it takes to enter the ruins of a house to look for people in need of help with whether or not the rescuer swore an oath of loyalty to defend the Constitution and the State of California?
Even as an American citizen and at least erstwhile Californian I'm grossly offended by this form. I gave up two days of my life to learn what I felt I needed to be able to help my neighbors, only to find that wasn't good enough unless I also was willing to swear an oath of loyalty. How onerous, and how redundant, as I think it's fair to say that anyone willing to get the training to do these things is by their very actions doing exactly what the oath requires.
Edit 11/6: Here's the oath:
OATH OF LOYALTY: I, [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.
Comments (8)
You said:
"Still, I'm left with the concern that by having done the training I may in fact already have picked up an affirmative duty to do something in case of emergency (though what exactly I'm not really sure) by virtue of the document we signed at the end."
I doubt this is a problem since, as a general rule under California law, even full time on-duty police and firefighters have no duty to rescue. The liability issues arise, as you mentioned, once they start a rescue or have certain forms of contact with the rescuee that creates a "special relationship" with the rescuee. Since most of the forms of special relationships have to do with either people who have been taken into some form of custody or people who have forgone action as a result of an order or directive from the officer/firefighter, I think it would usually be hard for you to create a special relationship unless you have started a rescue.
Posted by Mark | November 4, 2007 8:27 PM
Posted on November 4, 2007 20:27
Really? They don't have a duty to rescue? I mean, no one has a duty to perform a rescue that would put themselves in peril - there's always self-defense as an excuse - but I would have thought they'd have an affirmative duty to rescue when possible. I think that's the case in other states.
Where's the Restatement of Torts when you need it...
Posted by Cathy | November 4, 2007 8:37 PM
Posted on November 4, 2007 20:37
See Eastburn v. Regional Fire Protection Agency (2003) 31 Cal.4th 1175 and Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232. These explain the general rule of no duty to rescue in California. I don't know whether the rule is different in other jurisdiction.
Posted by Mark | November 4, 2007 8:59 PM
Posted on November 4, 2007 20:59
BTW... Cal H&S Code Sec 1799 et seq provide the correlary immunities that protect most lifesavers from suit for afirmative acts that cause injury, so long as they are performed in good faith and without gross negligence. The rule for firefighters is at 1799.107.
Posted by Mark | November 4, 2007 9:03 PM
Posted on November 4, 2007 21:03
Also, note that the responder can get fired or have personell action taken against him or her for failure to do his or her job. Its just that the person who wasn't rescued has no cause of action against the responder or his/her employer and can't seek compensation.
Posted by Mark | November 4, 2007 9:06 PM
Posted on November 4, 2007 21:06
The last part scares the hell out of me. An expatriate, especially one who lives in another country because of a partner's work (or simply because of marriage), may wish to help out his or her local community, but having to swear a loyalty oath? I'd never get involved in anything that would force me to swear loyalty to a foreign government. I'd feel like the worst form of traitor.
Posted by Charlene | November 5, 2007 3:55 PM
Posted on November 5, 2007 15:55
No, I wouldn't want a careless rescue...but do people really make careless rescues a lot?
Seems like the type of thing you'd put some care into if you're even bothering..
Posted by Rick Lax | November 6, 2007 10:49 PM
Posted on November 6, 2007 22:49
Now that you've posted the current text of the oath of office, I have to say that I kind of like the concept of the oath and think that it is pretty reasonable requirement for public officers and officials.
The purpose of the oath is to (i) remind public officers that they first serve the constitution, not any particular person, party or self-interest, (ii) add some solemnity to the proceeding of becoming a public officer, and (iii) get a promise from the officr that they will "well and faithfully discharge the duties upon which I am about to enter" (ie do their best and not be corrupt).
Agreed that these concepts might be more significnt for an elected official, or an official with discretionary authority than for a minor official (such as a security monitor in a dorm, a secretary, or a member of a CERT team). However, it doesn't seem inappopriate for us to want to reinforce all of these concepts with respect to any public employee. The constitution is the supreme law of the land, and if one can't follow it--to the exclusion of private interest--then perhaps one should not be given the mantel of even minor civil authority.
Note that this is not the old version of the oath that required vague statements about what groups one did or didn't belong to. That one I find problematic. This one, not so much.
Now as to the issue of requiring the oath as a condition for being a "volunteer who simply want to assist the community they live in," I think that this is oversimplifiing the nature of what a CERT team member is. CERT team members, at least in theory, become minor public safety officials during emergencies. That's why they are given workers' comp and indemnification. As such, I think that it is reasonable to ask them to take the same oath required of police, paramedics, firefighters, security guards and the like.
If someone wants to get lifesaving training they don't have to take the oath (though they may have to get the training through a community college or elsewhere). If someone wants to be a good samaritain during an earquake or when they see someone in distress, they don't have to take the oath (and they will be covered from most liability by the good samaritain laws). But if someone want to be a member of a government run first response team, even on a volunteer basis, they do have to take the oath. And I guess I don't have a problem with that.
Posted by Mark | November 7, 2007 2:10 PM
Posted on November 7, 2007 14:10