Non-assistance with anybody in danger

The non-assistance with anybody in danger is the engagement of the Criminal responsibility of a person who would not intervene vis-a-vis a person running a danger.

The denomination is misleading: indeed, it is not in oneself the fact of not acting which is condemnable: to be able to act, it is necessary

that the person is informed of the danger;
that it is able to act;
that the action does not present a danger to the person nor for a third.

For these reasons, the French law prefers voluntary speech of abstention to carry assistance to a person in danger .

This concept exists in several countries, for example:

in the Penal code French (Article 223-6)
in the penal code of the Principality of Andorra (Article 199,278,279,310) * in the German Penal code (Article 323c, Unterlassene Hilfeleistung )

The American Droit and Canadian do not have obligation to carry help, except in the event of former obligation (attending physician, relation parent-child), or if the person is responsible for the state of the victim. On the other hand, the Charter of the rights and freedoms of the person (Quebec) (Article 2) evokes this obligation to carry help. But they have a law attenuating the risks of legal proceeding in the event of intervention, under the denomination: Law of the good Samaritan.

Concept in French right

History

Historically, the French right always avoided creating a prohibition not to make.

However, to punish an individual not to have helped somebody is a prohibition to abstain from. For a long time, there thus did not exist legal requirement carry help. Vichy should have been awaited so that such an obligation is founded; indeed, the French government saw of an evil eye the passivity of the French towards the Germans victims of the acts of the Résistance.

Currently, the existence of the obligation to carry help seems to go from oneself in the French right and is not called any more into question. However of new problems appeared: conditions and limits of such an obligation.

Formulation of the Penal code

Article 223-6 of the Penal code French (Article 63 of the old penal code) condemns the voluntary abstention to carry assistance to a person in danger:

; Article 223-6

Whoever which can prevent by its immediate action, without risk for him or the thirds, either a crime, or an offense against the body integrity of the person voluntarily abstains from doing it is punished five years of imprisonment and 100.000 euros fine.

will be punished same sorrows whoever voluntarily abstains from carrying to a person in danger the assistance as, without risk for him or the thirds, it could lend to him either by its personal action, or by causing a help.

This obligation to act is reinforced in two cases:

in the case of medical and paramedical professions, in addition to the Penal code, the Public health code precise:

for a doctor, the R.4127-9 article (article 9 of the Code of conduct medical): “Any doctor who is in the presence of a patient or of a casualty in danger or, informed that a patient or a casualty is in danger, must carry assistance to him or make sure that it receives the care necessary. ” ** for a Dental surgeon, the R.4127-205 article: “Out the only case of major force, any dental surgeon must carry help of extreme urgency to a patient in immediate danger so of other care cannot be to him assured. ”
for a Midwife, the R.4127-315 article: “A midwife who is in the presence of an expectant mother, of a parturient, one been confined or a newborn in immediate danger or which is informed of such a danger must carry assistance to him or make sure that the care necessary is given. ”
for a Pharmacist, the R.4235-7 article: “Any pharmacist must, whatever his function and within the limit of his knowledge and his means, to carry help to any person in immediate danger, out the case of major force. ”
for a nurse, the R.4312-6 article: “The male nurse or the nurse is held to carry assistance to the patients or wounded in danger. ”

article 121-1 of the Penal code provides that there is offense in the event of “failure with an obligation of prudence or safety provided for by the law or the regulation, if it is established that the author of the facts did not achieve normal diligences taking into account, if necessary, of the nature of its missions or its functions, its competences as well as capacity and means it had. ”

This last point can concern the professional health workforces or first-aid workers (Sapeurs-pompiers or private Ambulancier S), but also the people responsible for the safety of an activity, having followed a specific training and having the means of ensuring this safety, such as for example the release of emergency procedures in the event of industrial accident, the beaconing of a road obstacle by an employee of a company of highway, the use of material of Lutte against the fire for the personnel of fire protection…

Let us note that this obligation to act is accompanied by an attenuation of the criminal responsibility if the action of the rescuer had fatal consequences, in conditions which the average employees are proportioned with the danger (concept close to the self-defense): ; Article 122-7

is not penally responsible the person who, vis-a-vis a current or imminent danger which threatens itself, others or a good, achieves an act necessary to the safeguard of the person or good, except if there is disproportion between the average employees and the gravity of the threat.

Limits brought by jurisprudence

The limits are of three orders: a serious and immediate danger, a possible assistance and a demonstrable abstention.

To summarize, the offense of omission exists only if the action could have produced an effect.

This infringement does not protect from all. It is not a question to impose the action in all the cases but to limit excesses. It is necessary to protect from tacit complicity. In the same order of idea, it should be recalled that, in certain cases, an omission can be easily transformed into Complicité.

The qualification of the infringement results from the facts. There do not exist predetermined criteria for which an intervention is obligatory, right a screen to be followed.

A serious and immediate danger

The danger must be perceived like sufficiently serious and imminent. Thus, the omission to call the helps at the time of a fire will be surely described as omission to carry help.

On another side, not to call the police force at the time of an argument will surely not be qualified non-assistance, except if the victim gives the impression not to be able to leave itself there all alone.

Methods of the assistance

The assistance must have been able to cause a result. The example running is that of a motorist who sees a person and blood on the side and which does not stop. If this person already died then the motorist nothing risks. If it is alive then the offense of omission could be qualified.

The assistance must be able be reasonable. The law does not oblige people to act as hero. Thus, the omission to call the helps is often the most recognized infringement. The omission to act for the protection of the victim being retained only whenever the first-aid worker has particular knowledge. Thus, a doctor or professional first-aid workers in service (cf supra ) will see themselves obliged by the law to make acts on the victim, but a person without formation will be able to be satisfied to call the helps. In the event of technical or technological risk (risk related to a Machine, chemicals, a current fort), a trained technician will have to apply the specific security instructions to fight the disaster or to put an end to the risk, but a not trained person will be able to be satisfied to protect while moving away the people or by actuating an alarm, an emergency stop.

The proof of the abstention

The abstention must be the subject of a particular proof. One should not be satisfied to say that nothing was done but to say what one could have done.

Thus, it is necessary to prove the voluntary refusal to intervene. However, the only abstention can be a simple negligence and thus source of penal Civil responsibility and (article 121-1 of the penal code envisaging the responsibility in case “for imprudence, of negligence”).

Difficulties

This concept with is crossed several concepts: the Individual freedom, the Right to safety, the involuntary infringement of Murder.

Non-assistance with anybody in danger and individual freedom

Individual freedom is often summarized by this formula taken again by the French jurisdictions: “ freedom is the rule, the constraint the exception ”. One can thus put the question if one must oblige the person to act and even if one can oblige a person to be helped whereas she does not want it.

The French law does not make it possible to look after a person against her liking (Article L.1111-4 of the Public health code), but still is necessary it that the person is able to express her assent and that this one is not distorted (nobody in full possession of its mental faculties). Thus, to let act a person threatening to commit suicide under pretext that it is its will engages our criminal responsibility.

However, it is also necessary to consider the particular case of the minors and the sects. Since 2002, the minors and their parents cannot be opposed to vital care under religious or different pretext; the law protects the doctors in their giving a total latitude (except reserves from the therapeutic eagerness), but that limits to the urgent care like the vascular Remplissage (Perfusion of a liquid of synthesis) or the cardiopulmonary Réanimation. For the care being able to wait a few hours, the doctors must request the lifting of the parental authority the Public prosecutor or its substitute to pass in addition to the opposition of the parents. For the major ones, the solution is more complicated. The only clear limit is that of the momentary madness (ex: suicide attempt).

See : Euthanasia, Suicide, Therapeutic eagerness, Sect.

Non-assistance with anybody in danger and right to safety

Vis-a-vis is individual freedom one often opposes the right to safety but really reality?

Certain times, the assistance in itself are dangerous. Awkward people can obstruct the first-aid workers and endanger the victim, or make the task of the rescuers even more difficult while endangering themselves and thus by increasing the task of the first-aid workers.

Non-assistance with anybody in danger and other infringements

The qualification of omission can be sometimes transformed into involuntary murder or professional misconduct.

The involuntary murder is an infringement in time; the offense of non-assistance is instantaneous. The involuntary murder requires a positive action (for example: to give a punch).

The professional misconduct requires that the profession be report/ratio with the risk not avoided. For example, a doctor who does not have acts according to the “code of practice” could be continued for professional misconduct instead of non-assistance.

See too

Internal bonds

Right of first aid
Law of the good Samaritan (right states-unien and Canadian)

External bonds

non-assistance with anybody in danger, A. Zelcevic-Duhamel, February 25th 2005
Criminal Law: Non-assistance with anybody in danger, an article of the site Juristudiant.com

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