DOI: https://doi.org/https://doi.org/10.57187/s.5033
Basic life support (BLS) measures and the use of automated external defibrillators (AEDs) are key elements of a successful rescue chain in cardiac arrest cases.1 However, empirical studies on cardiopulmonary resuscitation (CPR) also indicate that one of the greatest deterrents for potential helpers is their fear of legal consequences.2 This is evidenced by persistent claims on social media that resuscitation attempts have led to charges of sexual harassment.3
This article analyses criminal liability risks in resuscitation based on Swiss law. Nevertheless, the findings are broadly transferable to other jurisdictions, as the relevant offences (e.g., intentional or negligent homicide, bodily harm, omissions, coercion) are universally codified. The medico-legal principles discussed likewise reflect internationally recognised standards, including those embedded in the Oviedo Convention on Human Rights and Biomedicine.
The risks of criminal liability in resuscitation are analysed below,4 with four scenarios distinguished: What if resuscitation is unsuccessful and the person dies despite resuscitation (death despite resuscitation)? What if the person survives but suffers damage (harmful resuscitation)? What if the person survives but did not want to be resuscitated (unwanted resuscitation)? What if the helper decides not to resuscitate (failure to resuscitate)?
The conclusion may already be anticipated since the risks of criminal liability are negligible provided that helpers adhere to two simple guidelines: first, the rule is that in case of doubt, resuscitation should be performed (in dubio pro REA). Second, the exception to this is that resuscitation must not be performed if it is expressly refused (no means no).
If a patient dies despite resuscitation, the question arises as to whether this will have criminal consequences. According to Art. 111 of the Swiss Criminal Code,5 anyone who intentionally kills a person shall be punished with a custodial sentence of no less than 5 years. Rescuers want to save lives, not take them. They do not accept killing, let alone strive for it (Art. 12 para. 2 SCC). Therefore, negligent homicide is going to be the main focus in such cases. For the rescuer to be accused of a breach of duty of care, they must have violated a standard of care and acted in a culpable manner according to the care that is incumbent on them in the circumstances and commensurate with their personal capabilities. Finally, the death must have been foreseeable.
According to Art. 117 SCC, anyone who negligently causes the death of a person shall be punished with imprisonment of up to 3 years or a fine. According to Art. 12 para. 3 SCC, anyone who fails to consider the consequences of their conduct due to a culpable lack of care commits a felony or misdemeanor through negligence. A lack of care is subject to liability if the perpetrator fails to exercise the caution required by the circumstances and their personal capabilities.6
According to the Swiss Federal Supreme Court, a conviction for negligent homicide first requires that the perpetrator caused the outcome,7 which is referred to as causation. According to case law, conduct is causal if it cannot be disregarded without the result also being eliminated; however, this conduct need not be the sole or direct cause of the outcome.8 An interesting situation arises in cases involving the death of a patient following an attempt to administer resuscitation. On the issue of causation, the death would not have occurred in the specific time or place that it did but for the attempt at resuscitation. Nonetheless, the helper would obviously not be considered liable because they were attempting to save the patient’s life.
The starting point for all duties of care is the prohibition of endangering the protected legal interests of others.9 Where specific legal provisions serving the purpose of accident prevention and safety (e.g. road traffic regulations) require certain behaviour, the duty of care is determined by these provisions.10 In the absence of such standards, reference can be made to generally accepted rules of conduct issued by private organisations11 (e.g. the FIS rules for skiers) or to the principle of danger prevention (“Gefahrensatz”).12
Standards of care are guidelines for action that have been developed from “painful experience”.13 In a medical context, these guidelines are derived from the rules of medical practice (lex artis).14 The guiding principle is the “state of the art” (i.e. the current state of science and doctrine).15 To determine whether resuscitation should be performed, the guidelines published by the Swiss Academy of Medical Sciences (SAMS) “Decisions on cardiopulmonary resuscitation” would likely be consulted.16 To determine how resuscitation should be performed, the established “best practices” of rescue and emergency medicine and intensive care medicine would have to be identified. For example, the guidelines of the European Resuscitation Council state that the duty of first responders is “to recognise cardiac arrest, immediately start CPR, call for help and facilitate rapid defibrillation.”17 If, after determining that cardiac arrest has occurred, a first responder were to wait 5 minutes before starting resuscitation, they would be violating the aforementioned standard of care in emergency medicine. In its Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care, the American Heart Association recommends the following: “During manual CPR, rescuers should perform chest compressions to a depth of at least 2 inches, or 5 cm, for an average adult [...]. It is reasonable for rescuers to perform chest compressions at a rate of 100 to 120/min.”18 Thus, CPR that is too weak or performed at too low a frequency could constitute a violation of the rules. The Swiss Resuscitation Council stipulates that the patient must lie flat on a hard surface for CPR and that the pressure point is in the middle of the chest on the lower half of the sternum.19 In this case, incorrect positioning or a pressure point that is too low or too high could constitute a breach of the duty of care.
The fact that an action violates a standard of care is a necessary but insufficient condition for criminal negligence on its own. The objective violation of a duty of care must also be subjectively attributable to the helper.20 Notably, this concerns the standard of care which is determined on an individual basis.21 According to Art. 12 para. 3 sentence 2 SCC, in this context, carelessness will constitute a breach of one's duty of care only if the person fails to exercise the caution required by the circumstances and their personal capabilities.
The personal capabilities to be considered include the person's education and professional experience.22 The circumstances to be considered depend on the type of procedure or treatment, the associated risks, the scope for assessment and evaluation available to the person, and the means and urgency of the medical care. Physicians only violate their duty of care if they make a diagnosis or choose a therapy that no longer appears reasonable according to the general state of professional knowledge.23
Regarding the personal capabilities of the helpers, it should be noted that lower requirements apply to “normal” doctors than to specially trained emergency doctors and paramedics. Lower requirements would also apply to first responders and, even more so, to laypeople, since their training and practical experience are not comparable to those of medical professionals. Regarding the circumstances, behaviour must be assessed from an ex ante perspective. In retrospect, no excessive demands may be placed on the responders. Considering the information only available in hindsight would fail to do justice to the extreme circumstances and pressure under which they acted. Therefore, liability would not arise merely because better options had been identified in retrospect; instead, it would only arise if the responder’s intervention could be considered obviously unreasonable.24
A breach of the duty of care is only subject to liability if the outcome was foreseeable to the person “according to the ordinary course of events and the general experience of life”.25,26 Predictability must also be assessed from an ex ante perspective and subjectively measured against the standard of care outlined above. Therefore, the question is: “What should the perpetrator have been able to recognise at the time of the act based on the circumstances and his knowledge and abilities?”27 Returning to the above example, it must also be clear to first responders that they are endangering the life of the person concerned if they wait 5 minutes before starting resuscitation.
If the patient dies despite resuscitation, the rescuer who acts to the best of their knowledge and ability is not liable for negligent homicide, even if it later turns out that the rescuer could have taken more effective steps to resuscitate.
What are the criminal consequences of successful resuscitation? At first glance, this question may seem surprising, especially since a person's life is being saved. First, it should be clarified that BLS measures do not constitute sexual acts under criminal law. Although the chest and mouth may be touched during chest compressions and ventilations, respectively, these actions lack any objective sexual character.28 Accordingly, a helper will not be held criminally liable for sexual offences when performing a resuscitation. Chest compressions performed as part of CPR frequently result in rib fractures.29 Even after successful resuscitation, short-term physical complications such as hypoxia-related organ damage and long-term neurological and psychological impairments can occur. Such injuries are objectively classified as bodily harm (1.). While intent or negligence may be subjectively present (2.), the decisive factor in determining criminal consequences is whether and how these injuries can be justified (3.).
In the objective elements of the offence, assault offences are graded according to the severity of the consequences of the offence. Life-threatening (e.g. ruptured spleen)31 and permanent injuries (e.g. from complicated bone fractures)32 are considered serious bodily harm (Art. 122 SCC – serious assault). On the other hand, impairments involving the temporary disturbance of health (e.g. simple bone fractures, concussions)33 are considered simple bodily harm (Art. 123 SCC – common assault). Additionally, acts of aggression are actions that do not result in damage to the body or health (e.g. slapping; Art. 126 SCC – acts of aggression).34
Chest compressions are likely to reach the threshold of an act of aggression, while broken ribs are generally classified as a simple bodily injury. In the case of lung lacerations or pneumothorax, an expert opinion would be required to determine whether there was a risk to life. Hypoxic brain damage is considered serious bodily injury if it leads to permanent impairment. Overall, damage caused by resuscitation is also considered bodily harm if it is medically indicated as a life-saving measure.35 Ulitmately, the (therapeutic) end does not justify all (treatment) means.
In the subjective elements of the offence, intent and negligence must be distinguished from one another. Each can be divided into a knowledge component and a volitional component. A perpetrator acting with intent knows that their actions will lead to a specific injury and also wants this outcome to occur (Art. 12 para. 2 sentence 1 SCC). A person who acts with conditional intent (“dolus eventualis”) considers the outcome to be possible based on their knowledge and accepts it in terms of volition (Art. 12 para. 2 sentence 2 SCC). A perpetrator who acts with conscious negligence has the same perception in terms of knowledge:36 They consider the outcome to be possible. On the volitional side, they trust that it will not occur. Perpetrators who act with unconscious negligence lack any awareness of risk: they do not consider the outcome (Art. 12 para. 3 SCC).37
In the case of damage caused by resuscitation, the rescuer's perception must be analysed. This can be illustrated by the example of broken ribs. Paramedics and first responders know that chest compressions during cardiac massage often cause broken ribs. Even if they do notwant these fractures to occur, they accept them for the greater objective of preventing death. Therefore, paramedics and first responders generally act with conditional intent when it comes to such rib fractures. If laypeople are not aware that rib fractures may occur during chest compressions, they are acting with unconscious negligence. In the case of the most serious consequences of resuscitation (hypoxic brain damage), it would have to be argued in practice that trained helpers consider this risk to be possible but trust that this damage will not occur. In this respect, there would be conscious negligence.
How can these bodily injuries be justified?38 The most prominent justification for medical interventions is the consent of a competent patient (Art. 5 Convention on Human Rights and Biomedicine39).40 Since the patient is not competent in the event of cardiac arrest, it is not possible to obtain informed consent at this point.41 Therefore, reliance must be placed on their presumed consent.42 According to Art. 379 of the Swiss Civil Code43 “[i]n urgent cases, the doctor may carry out medical procedures according to the presumed wishes and interests of the person lacking capacity of judgement.” In the first instance, the subjective wishes of the patient shall be considered, and in the second instance, the objective requirements.
How the person concerned would have subjectively decided44 can be determined from a patient decree. According to Art. 370 CC, a patient decree can specify which medical procedures are to be consented to in the event of incapacity. The patient's wishes may also be evident from a documented REA status.45 In the absence of a written document, previously expressed wishes shall be considered.46 Relatives or medical staff may provide information about the wishes of the person concerned.47 If neither relatives nor medical staff can be consulted, the objectively necessary measures may be taken in an emergency (Art. 379 CC; Art. 8 Convention on Human Rights and Biomedicine).48 In such cases, there are no indications of what the person subjectively wanted; instead, the justification is based on “necessity” (Art. 17 SCC): the helper is justified because they are preserving life at the expense of bodily integrity.49
For example, objectively necessary measures50 are set out in the guidelines of the European Resuscitation Council.51 As a rule, the objectively necessary measure – especially for laypeople and first responders – will be to perform resuscitation regardless of whether injuries to the person may be sustained.52 In exceptional cases, such as when resuscitation is futile, it may be objectively necessary to refrain from attempting it.53 In this respect, the person intervening also has a margin of discretion.54
In summary, injuries caused by the act of resuscitation are justified either subjectively by presumed consent or, in an emergency, objectively by the fact that life is saved at the expense of bodily integrity.55
What are the criminal consequences if a person who does not want to be resuscitated is resuscitated? Refusal of resuscitation may be explicitly communicated by a “do not resuscitate” (DNR) order (“REA status: No”), a written advance directive, a verbal statement by the patient, or (rarely) by a “no-CPR” stamp or tag.56 Here, it must be assessed which criminal offences apply (1.), whether there is justification (2.) and what applies if the rescuer is unsure whether resuscitation is wanted or not (3.).
As set out in Chapter “Harmful resuscitation”, chest compressions constitute direct physical contact at the level of acts of aggression (Art. 126 SCC). Additionally, simple bodily injury (Art. 123 SCC), such as broken ribs or lung lacerations, may occur as a result of compressions. Indirectly, however, serious bodily injury (Art. 122 SCC) in the form of permanent neurological damage may also occur.57 The risk of such indirect consequences may be one reason why resuscitation is refused.58 Criminal liability may also arise in the case of unwanted resuscitation, when life-saving measures are taken against the will of the person concerned.59 This might constitute coercion if the person concerned is forced to undergo previously refused rescue measures. However, according to the Federal Supreme Court, Art. 181 SCC protects (only) the freedom to form and exercise one's will.60 When viewed in this manner, this provision does not confer a criminally enforceable right to have a previously expressed will respected. Therefore, an unconscious person cannot be coerced into anything.61 A counterargument could be that the individual is compelled to continue living beyond their state of unconsciousness, despite having expressly rejected this outcome.
The situations discussed above involving “harmful” resuscitation and the “unwanted” resuscitation discussed here have a common thread: in both cases, there is an objectively life-threatening emergency. Subjectively, the persons concerned in the first situation agree to the life-saving measures, even if these are accompanied by damage. In this second situation, an objectively necessary life-saving measure is subjectively rejected because it may be accompanied by serious damage.
Presumed consent is ruled out if it is clear from a patient decree, a “do not resuscitate” (DNR) order or previously expressed wishes that the person concerned rejects resuscitation. By means of this refusal, the person concerned establishes a treatment veto, the violation of which constitutes a criminal offence.62 In this context, resuscitation also cannot be justified by the fact that assistance may save the life of the person concerned. At first glance, the first responder may appear to be protecting overriding interests by saving life at the expense of physical integrity (broken ribs, etc.). However, this does not constitute justification. No patient must be subjected to rescue against their will, even if their refusal may inevitably lead to death.63
So far, it has been assumed that rescuers are clearly aware when resuscitation is refused (e.g. due to a “do not resuscitate” [DNR] status). However, in many cases, it is unclear whether resuscitation is desired; for example, because a patient's decree cannot be consulted in an emergency. In such cases, the rescuer's assumption is decisive. If they assume that the person would presumably consent to rescue, they are to be judged according to this assumption, even if a DNR status is discovered afterwards (Art. 13 para. 1 SCC). In the case of an error as to the justifying circumstances, the perpetrator mistakenly assumes that the actual conditions for a justification exist.64 As such, they must be judged according to this assumption and are thus justified and protected from liability.65 Only if the error could have been avoided with due care (Art. 13 para. 2 SCC) is there a risk of punishment for negligent bodily injury (Art. 125 SCC). Here, too, avoidability must not be affirmed lightly through an ex post assessment, but must rather be assessed ex ante in terms of what the rescuers should have recognised during the emergency.
An important example of a situation in which it is often unclear whether life-saving measures are desired or not is attempted suicide. Should a person who has attempted to take their own life be helped,66 or can they be left to die? On the one hand, it is clear that it is not permissible to rescue a suicidal person against their will.67 However, an alternative conclusion also follows from this, namely, that if the person is not acting of their own free will, there is a duty to rescue them.68 It is not usually possible to determine whether a person is committing a voluntary “calculated suicide” or an involuntary “impulsive” or “appeal suicide”.69,70 Therefore, the decisive factor in such cases is what the rescuers imagine: “In the case of cardiac arrest due to attempted suicide, it should not generally be concluded – purely on the basis of the possible suicidal act – that the person concerned would refuse CPR […] In doubtful cases, CPR should be attempted (unless the prognosis is wholly unfavourable) […] If, however, based on the evaluation of the particular case, the medical professional […] concludes that the person attempting suicide would refuse such assistance, then he or she may withhold or terminate CPR.”71
Can a helper be prosecuted for not resuscitating? Is this a case of failure to provide emergency assistance (1.) or even homicide by omission (2.)? What if the helpers are mistaken about their duty to help (3.)?
According to Art. 128 SCC, anyone who fails to help a person in immediate danger of death, even though they could reasonably be expected to do so under the circumstances, is guilty of failure to offer aid in an emergency. According to the Federal Supreme Court, the helper must, in principle, “do everything in their power.” The duty to help only ceases to apply when the help no longer meets a need; in particular, if the person expressly refuses the help offered or if death has occurred.72 Help is unreasonable if the helper would have to expose themselves to a high risk of accident or infection.73
An immediate mortal danger to life exists when life is hanging by a thread.74 Notably, people who suffer a cardiac arrest are in mortal danger.75 If a person is in mortal danger, everyone is obliged to help,76 not only trained professionals. According to the law (“failurehttps://www.fedlex.admin.ch/eli/cc/54/757_781_799/de#art_128 to offer aid”), only those who do not provide any assistance can be punished. Therefore, only the failure to perform CPR (“withholding… CPR”) can be prosecuted, not the discontinuation of CPR (“withdrawing CPR”).77 Concerning the duty to assist under Art. 128 SCC, a distinction must be made between four scenarios:
If resuscitation is required and desired, there is an obligation under criminal law to provide assistance under Art. 128 SCC.
Do rescuers have to resuscitate a 96-year-old woman with multiple morbidities to avoid criminal liability? First and foremost, this depends on her wishes: if it is clear that she wants resuscitation and is willing to accept not only the possible injuries (broken ribs, etc.) but also possible long-term consequences, failure to resuscitate cannot be justified by these accepted consequences. Often, it will not be clear that resuscitation is desired at any cost, but only that it would presumably be agreed to.
According to the SAMS, resuscitation should be withheld if it would offer “no likelihood of benefit”, if there are “signs of certain death” or if there is a risk of “brain death or an extremely poor neurological outcome”.78 According to European guidelines, resuscitation may be withheld if “the safety of the provider cannot be adequately assured” or «when there is obvious mortal injury or irreversible death”, or in cases of “severe chronic co-morbidity, very poor quality of life prior to cardiac arrest.”79
First, it is clear that there can be no legal obligation to resuscitate (brain-)dead persons. It is also clearly unreasonable to expect helpers to put themselves at risk. In cases where there is no hope of success, regardless of the consent of the person concerned, the fact that no one can be obliged under penalty of law to take objectively futile measures suggests there is no obligation to resuscitate.80 The Federal Supreme Court also waives this obligation “if the assistance clearly no longer meets a need”. In medical law, it has long been generally accepted that doctors cannot be obliged to perform interventions that they consider pointless or inappropriate.82 Therefore, such an intervention cannot be enforced under penalty of law.
In the case of unwanted resuscitation, it was explained that a helper who “successfully” resuscitates a person who does not want to be resuscitated may be liable for assault, bodily harm and, if applicable, coercion. Conversely, this means that a helper respecting the wishes of a person who does not want to be resuscitated cannot be held criminally responsible. If the assistance itself constitutes a criminal offence, refraining from providing it cannot be a criminal offence.83
Cases in which resuscitation is neither required nor desired are also clear. Here, refraining from resuscitation is not only not punishable, but is in fact required.
If resuscitation is omitted, the person concerned dies. This raises the following question: Are helpers who do not perform the required and desired resuscitation only punishable for failure to render emergency assistance under Art. 128 SCC, or also for homicide by omission under Art. 111 SCC?84 This question is relevant because failure to provide emergency assistance is a misdemeanour (Art. 10 para. 3 SCC) punishable by imprisonment of up to 3 years, whereas homicide is a felony (Art. 10 para. 2 SCC) punishable by imprisonment of up to 20 years.85
Intentional homicide86 under Art. 111 SCC can be committed not only through active actions, but also through passive inaction.87 According to Art. 11 SCC a felony or misdemeanour may also be committed through a failure to comply with a duty to act (para. 1). A person fails to comply with a duty to act if they do not prevent an injury despite being obliged to do so by virtue of their legal position (para. 2). Persons who hold such a legal position are called guarantors. A guarantor position may arise from statute (lit. a) or from contract (lit. b). For example, parents have a statutory duty as guarantors to protect their child (Art. 302 CC). Parents who fail to rescue their drowning child are not only guilty of failure to render assistance (Art. 128 SCC), but also of homicide by omission (Art. 11 and Art. 111 SCC).88
Therefore, helpers are liable for homicide (or at least manslaughter: Art. 113 SCC) by omission if they are in the position of a guarantor. A guarantor is someone who has a qualified legal obligation to protect a specific legal interest.89 General statutory duties to provide assistance, such as Art. 128 SCC90 or § 17 (1) (a) of the Zurich Health Act,91 according to which “doctors are obliged to provide assistance in urgent cases”, do not establish a guarantor position.92
As a rule, relatives have a legal duty to provide assistance, such as parents for their children (Art. 302 para. 1 CC) and children for their parents and siblings, at least as long as they still live together (Art. 272 CC). The same applies to spouses (Art. 159 para. 3 CC). If they do not at least call the emergency services, they may be liable to prosecution for homicide or manslaughter by omission.
It is recognised that doctors working in emergency or rescue services have a (usually contractual93) duty to render assistance.94 The same applies to paramedics.95 However, it remains unclear whether first responders also hold a guarantor duty to provide assistance. At first glance, the existence of a guarantor position seems plausible, since they, like professional rescue personnel, are alerted in emergencies and sent directly to the site of the incident. In this respect, an expectation to provide assistance may arise. Guidelines stipulating that “once a call for rescue has been accepted, there is a duty to respond” may also suggest the existence of a guarantor position.96 On the other hand, the fact that “not every legal obligation, but only a qualified legal obligation”,97 such as that which parents have towards their children, leads to a duty to provide assistance is an argument against this notion.98 Such a qualified “duty of care” 99 is only held, if at all, by contractually bound, professional and remunerated paramedics and doctors, but not by first responders who offer their assistance voluntarily. Otherwise, first responders would be burdened with criminal liability risks on top of their voluntary service. Therefore, a guarantor position for first responders should be rejected. This applies all the more to bystanders who happen to be present and have no connection whatsoever to the person concerned. As such, first responders and third parties can only be prosecuted for failure to provide emergency assistance, but not for homicide by omission.
Omissions can also be based on misjudgments. A distinction must be made between errors of fact (a.), errors as to the justifying circumstances (b.) and errors of law (c.).
An error of fact occurs when a helper does not resuscitate because they fail to recognise that there is a danger to life or because they believe that resuscitation is futile. If they misjudge the situation in factual terms, they are to be treated according to their perception (Art. 13 para. 1 SCC). If the helper could have avoided the error by exercising due care, they are liable for negligence if the negligent commission of the act is punishable by law (para. 2). The last half-sentence is the most important: failure to provide emergency assistance under Art. 128 SCC is not punishable if committed negligently.100 This implies that helpers cannot be prosecuted under Art. 128 SCC, even if they grossly misjudge the danger to life or chances of rescue. This applies to all helpers (i.e., doctors, paramedics, first responders and laypeople).
In the case of homicide by omission (Art. 11 and Art. 111 SCC), negligent (c)omission of the act is punishable under Art. 117 SCC. However, only helpers in a guarantor position (i.e. emergency doctors and paramedics, but not first responders) can be prosecuted for this. Here, too, an ex ante perspective must be taken,101 which is why only obvious misjudgments can lead to liability.
Such an error would exist if helpers did not intervene because they believed that resuscitation would be refused; for instance, they assume that the person affected has rejected resuscitation, but in reality, the person affected would have wanted to be saved.
Objectively, this constitutes at least a failure to provide emergency assistance (Art. 128 SCC). Subjectively, there is intent since the helpers consciously decide not to resuscitate. The failure to provide assistance is objectively not justified because resuscitation was necessary and desired. Subjectively, however, the helpers make an error regarding the justification. They are to be judged according to their perception (Art. 13 para. 1 SCC): They imagined a DNR status. If this perception had been correct, failure to provide assistance would not only have been justified, but withholding CPR would have been warranted. In such instances, an acquittal would have to be granted.
46 A third error may involve helpers not being aware that they must help. In this case, they are not mistaken about the facts, but about a legal requirement.102 Anyone who, when committing the act, does not know and cannot know that they are acting unlawfully does not act in a culpable manner. If the error was avoidable, the court will reduce the sentence (Art. 21 SCC). Ignorance (“does not know”)https://www.fedlex.admin.ch/eli/cc/54/757_781_799/de#art_21 of a requirement or prohibition thus protects de jure against punishment. However, this only applies if this ignorance was unavoidable (“cannot know”)https://www.fedlex.admin.ch/eli/cc/54/757_781_799/de#art_21. Federal Supreme Court case law on unavoidability under Art. 21 SCC is so strict that, de facto, the old legal aphorism “error iuris nocet” (i.e. ignorance of law is no defence),103 continues to apply. Such an error of law is already excluded “if the perpetrator has the vague feeling that they are doing something wrong. The perpetrator does not need to know the exact legal classification of their behaviour.”104 An error of law is only unavoidable if “even a conscientious person would have been misled.”105 Those subject to the law should endeavour to familiarise themselves with it.106 Even those who are not familiar with Art. 128 SCC cannot claim ignorance of the law, because conscientious people must be aware of their general duty to render assistance.107
In summary, the risk of criminal liability for helpers is very low. Incorrect resuscitation can lead to liability for negligent bodily injury or homicide. Resuscitation performed against the will of the patient can result in liability for bodily injury or coercion. Anyone who fails to perform necessary and desired resuscitation may be liable for failure to render emergency assistance.
However, in all cases, the incorrect performance of the resuscitation or the misjudgment of the desire for resuscitation must have been clearly recognisable ex ante, taking into account the pressure and stress of the emergency situation. Examples would include resuscitation that is only started after a waiting period of 5 minutes, a deliberately disregarded “do not resuscitate” (DNR) order or, in the case of omission, a conscious disregard of the patient's desire for resuscitation (REA status: Yes).
In practice, guidelines are needed that are, firstly, understandable to laypeople and, secondly, easy to access even under great pressure. Two sets of guidelines are presented below, which are related to each other as a rule (1.) and an exception (2.).
The first guideline is: “In dubio pro REA” (when in doubt, resuscitate).108 This is a play on words derived from the legal maxim “in dubio pro reo” (when in doubt, rule in favour of the accused).109 The starting point of this rule is to consider the standard cases in which resuscitation is objectively necessary and presumably desired. In such situations, providing assistance is not only morally imperative, but also legally mandatory: anyone who fails to help a person in mortal danger, when this could reasonably be expected of them under the circumstances, is guilty of at least failing to render assistance under Art. 128 SCC.110
As its wording (“in dubio”) suggests, the rule also covers cases of doubt in which resuscitation is objectively necessary but where it is unclear whether the person concerned would consent to or refuse resuscitation. In such situations, there is double protection.
1. The error rule (Art. 13 SCC): First responders who assume in good faith that resuscitation is desired by the person concerned will be judged according to their assumption, even if it later turns out that they were mistaken.
2. The emergency rule (Art. 379 CC): In emergencies, it will often be unclear whether resuscitation is desired by the person concerned. This may be because there is no advance directive, a patient decree is not available on short notice, the resuscitation status is unknown, or relatives are not present or unable to provide reliable information. If first responders cannot determine the subjective will of the person concerned in such situations, they will also be legally protected if they perform an objectively necessary resuscitation. In summary, they will be legally protected in performing a resuscitation because they are attempting to save a life.
Every rule has an exception. If there are clear indications that resuscitation is refused, this wish must be respected. These clear indications may be provided by a negative resuscitation status, an advance directive/patient decree, a credible statement from the person in question conveyed by relatives, or, in rare cases, a “No-CPR” stamp or tag. Where the person concerned has expressed or recorded a clear refusal of resuscitation, assistance must not be provided, even if resuscitation is highly likely to be successful. No means no!
On 24 August 2025, the author submitted a comprehensive legal opinion to the Swiss Resuscitation Council on criminal liability risks for first responders performing basic life support (BLS-AED) [see full PDF of the German Version]. This article aims to share the most important findings from this opinion with a specialist legal and medical audience. The article is also published in German (Thommen M. In dubio pro REA, Strafbarkeitsrisiken bei der Reanimation. sui generis. 2025. https://doi.org/10.21257/sg.283) and French (Thommen M. In dubio pro REA, Risques de poursuites pénales en matière de réanimation. sui generis. 2025. https://doi.org/10.21257/sg.284).
The author would like to express his sincere thanks to Martina Farag-Jaussi, attorney-at-law and law clerk at the High Court of the Canton of Bern, for her careful revision and review of the original manuscript. The translation of the manuscript into English was performed with the assistance of DeepL Pro and ChatGPT 5.0. The author wishes to express his gratitude to Patricia Soltani, MLaw, attorney-at-law, and Benedict Elliott, LL.B. (Hons), for their meticulous review and correction of the English version of the manuscript.
The legal opinion on which this article is based was commissioned and financed by the Swiss Resuscitation Council (SRC).
The author has completed and submitted the International Committee of Medical Journal Editors form for disclosure of potential conflicts of interest. No potential conflict of interest related to the content of this manuscript was disclosed.