Regular correspondent, Dodge, has asked me to comment on the following:
“Could you please give some background on the current state of legislation on the area of living wills and do not resuscitate orders specifically if such orders do exist is it necessary for ambulance personnel to see written confirmation that it exists or can the word of family or medical staff suffice for ambulance personnel to comply with such orders or wishes of the patient.”
This is a very complex issue and, at the risk of self promoting, it is something I discuss in some detail in my book, Emergency Law (3rd ed, 2010, The Federation Press) so I would refer interested readers to that book for a detailed answer.
In short there is legislation in some states (NT, ACT, SA, Victoria) to allow for ‘advance medical directives’ or living wills but even in the States that have not legislated it remains that case that medical care can only be given with the consent of the patient. Where the patient is incapable of giving consent treatment that is necessary and in the patient’s best interests may be given but not if it is known to be against their wishes. That means that it is lawful to resuscitate a person who cannot consent, but not if you know they have previously and validly refused consent.
A valid consent requires more than a mere statement that they do not want to be resuscitated or to receive some other treatment. The refusal has to be ‘informed’ so that they are aware of the consequences of their decision and was intended to apply in the circumstances that have arisen. Deciding what information has been given and what circumstances were intended may be difficult if not impossible for a paramedic called to the scene.
One also has to wonder why the ambulance is on scene if the patient is not for resuscitation; but let us assume that the ambulance is attending to take a terminally ill patient to hospital for some care and the patient has a cardiac arrest and the officer is told that the patient is ‘NFR’.
In my view whether that can be acted upon really depends upon the information the officer was given. If you are told, when being dispatched, that the patient is terminally ill then, depending on treatment protocols for the service, that may be sufficient.
As a general rule however an officer should not take a family members’ word that a patient is NFR. If the treating doctor is on scene and confirms that the patient is being transported to a hospice or hospital with the expectation that they will die and that they have signed a living will and if, ideally the patient can confirm it, that could be relied upon.
Relying on written orders wont help much as one can’t be sure that they are intended to apply in the circumstances.
As noted this is very complex and will be a judgment call, taking into account what is known about the patient’s history, the circumstances surrounding their illness or injury and who called the ambulance and why. It is a case where the ‘wrong’ call that is where you decline to resuscitate when it was not in fact refused will have much more drastic consequences than applying treatment that is not what wanted. In the latter case, treatment can be withdrawn when the validity of the patient’s refusal has been confirmed by treating hospital staff; so in the case of doubt erring on the side of life will be the appropriate choice. Where the patient’s decision is clearly confirmed, eg you are dispatched to transport a terminally ill person to a hospice, on arrival their treating doctor confirms resuscitation is not warranted and that appears to be confirmed by family members, and ideally the patient, then it would be appropriate to withhold treatment if the patient arrested en route.
If you are called to a sudden collapse or a trauma incident, eg a person fallen from a roof, and are presented with written document that says “In the event that I am rendered permanently unconscious, I do not want extraordinary measures applied to prolong my life” you could and should ignore it. In that case you do not know if the necessary condition precedent is established, that is the patient has suffered a trauma and you cannot know if he is ‘permanently unconscious’; you cannot know if it applies in these circumstances eg would he consider life sustaining measures as ‘extraordinary’ and the officer wouldn’t have time or the expertise to discuss the issues with the family and the circumstances in which the document came to be written to determine if it was meant to apply in the circumstances that had in fact arisen.
That post may not help as it is unclear but it will I hope direct your mind to those sorts of issues involved. If anyone would like to post a further comment or thought we may be able to explore the issues in more detail?
Michael Eburn
7 February 2011
Australian Emergency Law 
Thanks for your help Michael and i did have a copy of your third ed but i put it down and someone made off with the thing so i have to get another copy
Also michael i forgot to add that western australia has undertaken to include advanced health directives under the Guardianship and Administration Act 1990 (WA) and i could not recall if this was covered in the 3rd ed of emergency services law. I hope this clarifies my original question
Dodge
The Guardianship and Administration Act 1990 (WA) ss 110P to 110ZB does provide for advanced health directives in much the same terms as the legislation in other States. The Act provides for matters of formality (ie the use of the approved form, who has to sign it, information that must be given etc); issues of validity (the directive isn’t valid if there was coercion or the patient wasn’t properly informed). The directive acts as the persons consent provided there aren’t circumstances to suggest that they had changed their mind or would have in the circumstances that have arisen. Where there is doubt the State Administrative Tribunal is given the power to resolve the issues.
The Act does not specifically say what is the effect (compare this with the Victorian Act that creates a criminal offence for failing to comply with an advance directive). The Act also says that the common law continues to operate. The common law (summed up in an English case, Re T) says that a person can refuse treatment provided that they are informed and the refusal applies in the circumstances; and another case, Re F says that reasonable treatment can be given to a person who cannot consent but not if it is contrary to their known wishes.
The effect of the WA Act is to make it easier to recognise an advanced directive (it must be on the appropriate form, not scribbled on the back of a kitchen napkin) and provides a way of resovling disputes that may arise. From an ambulance officers perspective, the position remains as discussed. Whether one should act without seeing it will be a matter of judgment. Even if you see it you cannot determine whether all the conditions have been met; certainly if there was disagreement, some family members saying they did not want ‘this’ treatment and others saying they do you would have to treat to save life so the Administrative Tribunal could resolve the matter according to law.
Where everything is consistent, which again would depend on the task assigned; if you are tasked to transport a terminally ill person to respite care and you are given the advance directive you may feel confident to rely on it if they arrest; you may not if the task is to take them to hospital for treatment of something and death is unexpected in the circumstances.
I hope that helps.
Michael
Thanks Michael you have cleared it up nicely, and i have just today purchased another copy of the third edition of emergency law hopefully this copy wont be a victim of pilfering.