04 February 2012

Whose Duty - What Duty: Overdose, Naloxone and Acts of Omission

A recent piece I penned for DDN's "Soapbox" Column provoked a stream of angry responses. Some of these appeared in DDN's letter page the following issue.A few wrote to me directly. A few tweeted about it. I wrote to each of the respondents because I wanted to expand on the issue of acts of ommission and duty of care. This blog piece takes the gist of what I wrote and expands on it. As it draws on case law from the UK it is of limited relevance to other countries.

Let me be clear – I don’t think that a much-expanded use of naloxone per-se and an massive increase in take-home Naloxone is a bad idea. Quite the opposite. It has, can and will save lives. I also believe in the distribution of foil, crack-pipes, Water for Injection and the opening of Supervised Consumption Facilities. Each bring with them legal and ethical issues which need to be carefully explored. 

In the case of Naloxone, some of these could be concerned with the administering of Naloxone. But my concerns are not primarily to do with the administering of naloxone which I recognize is a very safe activity and when done properly, within the framework within which people are trained should not create significant problems.
So when one advocate of Naloxone states “the law protects those who administer naloxone from prosecution,” I largely agree - though would add that there could still be scope for litigation if an aspect of the administration were negligent. Others may disagree with this. It would be for a court to decide as there isn't a clear precedent for this. Where I think my views diverge is when the same advocate makes the assertion “it doesn’t punish those who fail to administer it.

I think this is an area that warrants further discussion and exploration, not least because of the case of sad and troubling cases of Evans and Townsend which I think has significant implications here. 
The cases of Evans and Townsend are deeply unfortunate.

The case dates back to the death in 2007 of Carly Townsend, in Wales, from a heroin overdose. Her mother, Andrea Townsend, and her half-sister Gemma Evans, were prosecuted, convicted and imprisoned for manslaughter on the grounds of gross negligence. Evans and Townsend is an important case because it potentially expands and certainly reinforces the concept of duty of care, especially  in overdose cases, what could constitute negligence.

Carly had taken heroin which her sister and been instrumental in procurring. In court it was reported that "[Townsend] said she was frightened after Carly's lips turned blue but this only lasted for seconds so she and Evans placed Carly on a bed and she "listened to her snoring from downstairs where she watched television.
She said repeatedly she thought her daughter would "sleep it off".

Although neither party had specific overdose training, they had placed the victim, Carly, in the recovery position but, critically had failed to call an ambulance. A duty of care was held to exist for both parties for differing reasons – for Townsend (the mother), a familial duty of care existed and for Evans (step-sister), because she had been involved in the supply – although not charged or convicted with supply of the drugs herself.  

I think this is a significant point. We accept and recognize the duty of care that can be applied to professionals, it also applies to familial duty of care, and based on Evans, it applies where there is some involvement in the supply (and by extension the administration.)

At the risk of speculating (which seems to be frowned on by some parties) the older case of Stone and Dobinson (1977) has a bearing here too, because it established that “a duty exists where a person assumes a responsibility for another…” I don't want to follow this line of reasoning too far - Stone and Dobinson is quite an old case and probably should not be relied upon. The idea that a duty of care can exist for bystanders who try to render help has not been supported elsewhere and so such an extension is probably not that useful.

Having accepted the duty of care owed by professionals, some family members, and those involved in the supply and administration to my mind it doesn’t seem to me unreasonable that a person, familial or otherwise, who has taken on the role of a “carer” (in the context of undertaking THN training with a view to administering to an opiate user) could be considered to have a duty of care in law. This would seem a logical extension of Stone and Dobinson, creating a category above that of mere bystander but withouth the established roles of professional or family members.

Based on this, the next question is this: could a failure to administer naloxone or the failure to call an ambulance after giving naloxone be considered a gross breach of duty of care if the person died of an overdose? Assume firstly that the person (professional or otherwise) has been trained, and that they are in a potential overdose situation. Naloxone is available. For whatever reason the person fails to administer naloxone. Why? Uncertainty, intoxication, fear, dissuaded by another. I don't know. It's a hypothetical. But anyway they don't administer and the person dies.

Based on existing case-law if we take naloxone out of the equation, and we simply leave it with the issue of calling an ambulance or not, then the failure to call an ambulance by a person held to have a duty of care, which resulted in the death of an overdose casualty has been held to be manslaughter on grounds of gross negligence. This is the legacy of Evans and Townsend.

By extension if a person with a duty of care administered naloxone but then failed to call an ambulance and the casualty then died, I can't see a reason why the same wouldn't apply. 

The remaining question relates then to the failure to administer naloxone.

So far, based on everything I have read and every analysis and discussion I have seen, the discussion has hinged on the risks and ethics of administering rather than not doing so.As I have said already, I have few concerns relating to administering, although I would still prefer to see a “good Samaritan-type law” to put the issue firmly beyond doubt.

My issue, and the one that stems from Evans and Townsend is the failure to administer and, so far, I am not satisfied that this has been adequately considered. While I acknowledge that legal action stemming from a failure to administer naloxone or  a failure to call an ambulance post-naloxone which resulted in fatality  is unlikely, I am not aware of any ruling, guidance or even a legal opinion which says it can’t happen. Based on current caselaw I think it can. So on that basis I don’t know that the statement “[the law] doesn’t punish those who fail to administer it…” has been demonstrated to be true.

In most settings this isn't a huge issue. It shouldn't preclude roll out of THN especially to family and friends of opiate users. It is simply to highlight that the very process of recruiting and training users, their families and peers to administer THN is a potential double edged sword albeit one with one side larger than the other. 

On the one hand it massively reduces the chances of a fatality – which is overwhelmingly important. But by virtue of the process of taking on a caring role and attending training, the extent to which a duty of care can be said to exist increases, and as such the resultant implications of any omissions – the failure to call and ambulance (or potentially the failure to administer naloxone) go up. It doesn’t mean it shouldn’t go ahead. It means for me that the legal issue should ideally be resolved or at the least those undertaking such a role being made aware of the risks of failing to act, in addition to risk of death.
All these issues take me full circle back to an area of concern which related to hostels, an area that has been of overwhelming interest to me for over ten years. In the small number of hostels that work from an “eyes wide open” basis and actively manage use on site, drug related fatalities have been reduced to zero (including in high-risk, heavy using populations). This has been as a result of careful assessment, trained staff, sensible policies and such factors. This has been a significant success.
My concern (and I recognize that it is a hypothetical) is the issue of Duty of Care (post Evans) is again important. Based on everything I have said so far, I think it is possible for a trained member of hostel staff to be prosecuted under criminal law (or sued by a victim’s estate) for a failure to call emergency services. I doubt you would disagree with this. By extension, if at some point hostels start to hold naloxone and receive training on its use, would a failure to use naloxone be a similar breach of duty? I think they would, hence the need for hostel staff to err on the side of caution and administer “to be on the safe side.” If a hostel is “over-zealous” does this mean people would go and use elsewhere? Maybe. I accept that this hasn’t happened yet – but then in the UK naloxone hasn’t been expanded in to hostel settings on the whole. When it does I hope that the issue is monitored very closely. I am aware that these same issue are now being explored very closely in terms of Police carrying and using naloxone. It will be interesting to see how these discussions resolve.
For a detailed analysis of Evans and Townsend, see the following