Providing emergency medical care without consent: How the ‘emergency principle’ in Australian law protects against claims of trespass

In a medical emergency, the usual requirement to obtain consent before giving treatment does not apply. This exception to the general rule on consent to medical treatment is known as the ‘emergency principle’. By considering a case scenario, and by adjusting the facts to this scenario, we explain the circumstances in which the emergency principle will protect practitioners from an action in trespass. Although the fundamentals of this principle are uncontroversial, there are a number of uncertainties and inconsistencies in this law in relation to certain parameters. For example, whether a practitioner would ever be obliged to seek consent from a substitute decision‐maker before providing emergency treatment is not clearly or consistently explained. We suggest the law should be clarified.