This paper discusses the legal concept of “duty of care” in the context of witnessing heroin overdose. Heroin users are encouraged never to inject alone so that in the event of an overdose, medical assistance may be immediately called. However, results from the recent National Drug Strategy Household Survey indicate that a significant proportion of overdose witnesses do not call for an ambulance or for other medical help. Reasons given include an unwillingness to get involved and fear of police involvement. The latter is attributable partly to fear of prosecution on drugs charges or on outstanding warrants, and partly to witnesses’ concerns over legal liability in the event of the user’s death.
It is noted that there is no general duty to provide or call for assistance, but that such a duty may arise from particular circumstances or relationships. Theoretically, a duty of care may be breached by failure to call for assistance or by negligently administering assistance. However, the practical likelihood of criminal prosecution of a witness for the death of an injecting drug user is, in all but the most exceptional of circumstances, minimal. The appropriate public policy message is that the legal risks to overdose witnesses in calling for assistance are far outweighed by the medical risks to the user of not doing so.