Diver Indicted in 2003 GBR mishap

[ScubaSteve]

Because of the "legal direction" that this conversation has taken, I am going to offer a couple of other threads that tie into "Duty of Care" which has been brought up and questioned here. A couple of interesting threads are:

http://www.scubaboard.com/forums/ba...-instructor-faces-charges-merged-threads.html

The following thread was spun off from the above to primarily try to discuss only the "Duty of Care" perspective in diving. It touches on many areas and while only some of the posters are truly qualified to provide the true legal answers, it gives you some good ideas of what is required in some areas of the world.

http://www.scubaboard.com/forums/basic-scuba-discussions/252447-legal-requirements-divers.html

Again, I only introduce these threads because of the direction that this discussion was going. Only a slight and optional hijack.

 

[NudeDiver]

The coroner brought charges only a few months ago. Would have been a miscariage of justice to hold him without charge for five years.

Well, I guess what I was saying is that they should have figured out if they wanted to bring charges a LONG time ago. I mean, crikey - 5 years?? If it takes 5 years to come up with a cause of death for every incoming body, I'd have to think they would develop a serious backlog.

 

[NudeDiver]

ND do you really think Australia or any other country would dare detain an American Citizen unless they had everything necessary to go to trial? Not many countries would dare that kind of action..... nuff said there...

I don't think a person's nationality should determine this. I also think people should be a lot less concerned with what the U.S. thinks. But maybe that's just me.

In this case, maybe I'm just an idiot - but I don't think the following line of logic is unreasonable: "Hm...something strange here. This foreigner (wherever he is from) may have committed a crime. Let's give this case priority and come to a conclusion whether or not to press charges within a month. In the meantime, we'll take his passport so he can't leave the country - but he is free to roam around Australia with this here ankle bracelet so we can find him when necessary".

It just seems to me that, given the resources of government, a month should be plenty of time to interview the handful of witnesses and to determine the facts in this case - and then decide whether or not charges will be brought. More time to actually prepare a case - sure. I'm just talking about the decision to bring the charges. As the saying goes, "**** or get off the pot". You certainly don't sit there for 5 years.

 

[Dadvocate]

Correct me if I am wrong, but I recall that the authorities at the time didn't want to hold him. It was only after Tina's parents pushed for further investigation (after Gabe's return) that things were given a second consideration. It has been a long thread, so I may be mixing my cyber-cases up.

If that is true, there wasn’t really a fear of the US that hindered this process. Maybe it was that they hadn’t pieced things together by then, enough to warrant holding him.

The case still seems flimsy based on what I have read. Gabe isn’t even in the intermediate stage of being held by US authorities. The fight for extradition seems to be one that is going to move even slower than Gabe’s rush to the surface to find help for his troubled wife.

If he is guilty and they somehow get him down under to face trial, I hope they have more than a circumstantial case. Assuming that Aussies are just as disinterested in convicting an innocent person as others are, I would assume a jury comprised of Aussies would have a similar expectation from the prosecution for proving their case.

As my fiancé has told me, the innocent family of the child killed by a dingo some years back has become the stuff of legend in Australia, with many people pointing the finger at an overzealous prosecution. This was bad PR no matter how you slice it. No one wants the same thing again, especially with an international audience to boot.

Cheers!

 

[Dadvocate]

double post monster.

 

[Sas]

Back on the main subject. Is it really the case in Australia that if you commence caring for someone that constitutes legal assumption of responsibility that you then cannot voluntarily renounce? Sounds extraordinary to me. Do you know the strict legal position in the USA and the UK?

You can renounce duty of care only if your life is in danger, you are physically unable to continue, the person recovers or if someone more qualified comes along. When I have done CPR classes I have been told that if I start CPR I can only really stop if I am about to pass out or someone comes along more qualified. Here is an article I found regarding the legal issues in Australia with administering first aid (I imagine rescuing an unconscious diver would come under 'first aid' but could be wrong). Legal Issues in First Aid

 

[Dadvocate]

But “physically unable to continue” could entail a psychological reason for stopping or not providing assistance to a victim. It can happen that a person falls into a paralyzing shock either prior to or after some form of CPR has begun. People have been known to do great things when adrenalin kicks in. Others have been known to freeze up. On the extreme end, people can even pass out as a result of the stress related to being “the one responsible” for a victim. It is hard to say how a person will react.

When I did my EFR course, the instructor cited examples of people freezing up because they were worried that they couldn’t remember the proper steps and that they felt that this was going to cause permanent damage for the victim, odd as that rationalization might sound. He said that this reaction was so prevalent at accident scenes that many in the CPR training industry decided that doing mere chest compressions was enough (when on land), especially for people who were freezing up when thinking about the breath count to compression ratio.

With all that going on, and with all the cases of this kind of inaction taking place with “certified” people, it is not a hard case to make that someone simply could not bring themselves to act when the time came. And from a legal standpoint, it would be very hard to claim that someone didn’t feel this debilitating stress after the fact. How do you qualify someone’s inaction based on their fears in the context of applying culpability? That is a hard sell, I’d say.

From the side of the defense, it would be that much more a point of contention that Tina was Gabe’s wife, no matter what we think of his lack of love for her. That he could freeze up in this situation is not that hard to ask people to believe, even if it makes Gabe a complete coward in the eyes of the person doing the believing. Remember, most people see murder as an act that requires a great deal of calculated boldness for obvious reasons. Painting Gabe with the brush of inaction might play better for the defense if it sticks, which would make him less likely to be a murderer in the eyes of many.

Cheers!

 

[bowlofpetunias]

Sas if you like I can email you a copy of the extract of the Civil Liability Amendment (Personal Responsibility) Bill 2002 There was no effective "Good Samaritan Law in Australia until that time. My post last night was by memory. I brought my lesson plan home tonight. I see it does give "partners" as having a duty of care for each other.

The Employer assumes some responsibility for the actions of their employee who renders first aid in the course of their job under "The Master Servant Relationship".

In Canada there is a "Good Samaritan Act". A fundamental part there is "not for gain" If you accept a gift of appreciation.... you have been paid and therefore lose protection under the act. The basics are the same.... Assist to the best of your ability according to your training. Once you start continue until turn over to someone else, too dangerous, can't continue etc. The Employer has responsibilities for the performance of their employees actions as well.

I would caution people on "person has recovered". If you have accepted responsibility for them it is always better to turn them over to someone for further assessments unless they sign off, they no longer want your care. If they deteriorate later (inhalation injuries are classic for this).... it could be argued you have failed in your duty of care.

In Canada I was advised that as an off duty Paramedic to document, photocopy my documentation and then mail the original to myself. That way I would have my notes for reference and the originals still sealed and post dated could be submitted as evidence. If I was on duty I was protected by my employer.....and did documentation as per.....

I repeat... my personal approach here. Do my best, turn over to paramedic or doctor... get my tail out before anyone (police) get my name. In Canada I couldn't get away with that 'cause I was too well known/high profile in my community Anonymity is a wonderful thing!.

 

[Sas]

Sas if you like I can email you a copy of the extract of the Civil Liability Amendment (Personal Responsibility) Bill 2002 There was no effective "Good Samaritan Law in Australia until that time. My post last night was by memory. I brought my lesson plan home tonight. I see it does give "partners" as having a duty of care for each other.

Thanks bowlofpetunias, that would be great Considering what I was taught recently in Rescue class is kinda wrong, it would be nice to get the law in this area.

 

[bowlofpetunias]

Dadvocate ILCOR (International Liasson Committee On Resuscitation) Did a three year study on Resuscitation events around the world. ILCOR has representatives from Australia, Canada, Britian, New Zealand, South Africa and the US as well as others I can't remember. They made recommendations to the member National Resuscitation Councils who made reccomendations on how to interpret and apply the changes.

The changes were made because too many people were afraid of making things worse. They were having trouble finding pulses, thinking there was one when there wasn't and vice versa. They were struggling with landmarking and spending so much time on these things they were not get the brains oxygenated well enough. The defib protocol was changed as well. I attended an interesting conference where two Cardiac specialists who are reps on ILCOR did a debate on "To breathe or not to breathe in CPR" The only critizism I have now is the new method is much more tiring. The longest I did CPR personally with the old method was 1hr 30min I am confident I could still manage 30 -45 but the new method.... no way 15 -20 and I'd be training someone to take over so I could rest.

I confess I was old enough school I though there were crazy taking out landmarking. Now I see students get the right spot just as often by eye as they did with screwing up landmarking. The up side is more time is spent compressing and less wasted messing around and people are more confident. More people are prepared to do it now. If you can't access the face, or you don't have personal protection it is now acceptable to do Compressions only.... Better than nothing but clearly not as good as 2 breaths every 30 compressions.

You are right when people are presented with an emergency that is outside their normal realm of experience/comfort it is hard to remember heaps... THAT is why they are making CPR and first aid simpler.

Generally speaking I have seen many people in emergency situations. How you act in one type of emergency is likely to be consistent with how you react in others. Personal pressures impact their ability to cope with something they might normally be ok with.

I would like to point out that both "fight or flight" and "freeze" responses are natural responses in the animal kingdom.... we are members of the animal kingdom. Deer in the headlights, bear cubs up a tree, fawn in the grass are all examples. Some people are more likely to "freeze" than others. Training reduces the chance of a "freeze" but is no absolute guarantee.

I remember when I first started training first aid full time. I had students in to recertify and thought "What idiot gave this person a certificate in the past?" Now I realize "I was the idiot". We can do our best but all they have to do is meet the basic criteria and we have to pass them. Some of them go have a cup of coffee and that seems to "flush it all out"

No we can not hold "Gabe's instructor responsible" Sometimes I get 10 students but only 5 bring brains! In first aid they have to renew regularly... RD they don't ... not surprised he forgot a lot.... as I said before that boy doesn't have much between the ears from what I have seen. That doesn't make him innocent or guilty... sorry for the long past