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Military Healthcare Battlefield Immunity
  1. JC Kelly
  1. 1Lecturer in Healthcare Law, Department of Professional Health Studies, Faculty of Health and Social Care, University of Hull, Cottingham Road, Hull HU6 7RX 01482 464530 J.Kelly{at}hull.ac.uk

Abstract

The combatant soldier on the battlefield remains protected from any claim in negligence by the doctrine of combat immunity for any negligent act or omission they may make when fighting. In other words, the combatant soldier does not owe a fellow soldier a duty of care on the battlefield, as the duty of care is non-justiciable. However, the non-combatant Military Healthcare Professional, although sometimes operating in the same hostile circumstances as the fighting soldier, is unlikely to benefit from combat immunity for any clinical negligence on the battlefield. This is because they continue to owe their patient a duty of care, although this has not been tested in the courts. This paper considers if any military healthcare professional could ever benefit from combat immunity, which is unlikely due to their non-combatant status. Instead, this paper suggests that a modified form of immunity; namely, Military Healthcare Battlefield Immunity could be a new, unique and viable doctrine, however, this could only be granted in rare circumstances and to a much lesser degree than combat immunity.

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