Recently, two Victorian paramedics determined that a person involved in a motor vehicle accident was dead when that was not the case. Rescuers later determined that the victim was still alive, paramedics were recalled and he was treated and transported to hospital.
In a report appearing in The Age on April 15 2012 (Jill Stark, “Erring paramedics ‘vilified’”) it is said ‘Changes brought in in 2009 mean paramedics now have legal power to declare patients dead, whereas previously it was a doctor’s responsibility’.
It is unclear what that means or refers to. The relevant legal provisions are in the Births, Deaths and Marriages Registration Act 1996 (Vic), the Coroners Act 2008 (Vic) and the Human Tissue Act 1982 (Vic).
Section 37 of the Births, Deaths and Marriages Registration Act provides that a person’s treating doctor or a doctor who ‘examines the body of a deceased person after death’ must report the fact of the death and the cause of death to the Registrar. A form setting out the information that must be included is provided for in the Births, Deaths and Marriages Registration Regulations 2008 (Vic) s 8.
A doctor must also report a death to the coroner if the death is a reportable death (defined in s 4) which includes a death where a certificate under s 37 of the Births, Deaths and Marriages Registration Act has not been signed because the doctor concerned cannot determine the issues that must be determined, in particular what caused the death.
There is nothing in either of these Acts that refers to ambulance officers or paramedics.
The Human Tissue Act is concerned with taking human tissue for donation. Where it is intended to take tissue after death and ‘the respiration or the circulation of the blood of the deceased person is not being maintained by artificial means’ then their death must be certified by a doctor. Where artificial means are being used to maintain the respiration or circulation, certification by two doctors is required (Human Tissue Act 1982 (Vic) s 26(7)).
The Human Tissue Act defines death, for the purposes of all Victorian law.
For the purposes of the law of Victoria, a person has died when there has occurred-
(a) irreversible cessation of circulation of blood in the body of the person; or
(b) irreversible cessation of all function of the brain of the person.
(Human Tissue Act 1982 (Vic) s 41).
Again the Act makes no reference to ambulance officers or paramedics. So what is the basis for the claim that ‘paramedics now have legal power to declare patients dead’? The reality is that a declaration of ‘death’ is not formally required. What is required is notification to the coroner or the Registrar, or both, that a death has occurred and if possible, the causes of that death. It is still the case that only a doctor can do that.
Where a person is obviously dead, where their decomposed or dismembered body has been located, there is no requirement to find a doctor to certify that they are dead or to pretend to perform life saving measures until then. The police who find the murder scene can pretty accurately determine whether or not the victims are dead or not. Eventually they will be subject to an autopsy to confirm the cause of death, but the reality of death, that is that they have an ‘irreversible cessation of circulation of blood’ or an ‘irreversible cessation of all function of the brain’ may be pretty obvious.
It may also be clear when a person is not dead. A person with a pulse and a respiration rate ‘of less than six breaths per minute’ may be close to death, but they are not dead. Failure to determine that a patient with a pulse is in fact alive has nothing to do with the law, and everything to do with appropriate professional practice and competency.
In other cases death may not be obvious. This is why, where a person’s circulation and respiration are being artificially maintained, two doctors are required to certify death before steps can be taken to harvest their organs for transplantation. Where a person has collapsed and bystanders have started CPR it will not be clear whether the cessation of circulation is irreversible or not. The best option is of course to treat them as if their circulation can be restarted but at some point, the decision has to be made whether to continue with treatment or not. This was usually the call of doctors and perhaps that is what the author in The Age meant. Without being able to access the treatment protocols of Victoria’s ambulance services, I infer that what is meant is that paramedics, having completed their treatment protocols, could cease further treatment if the patient failed to respond so the inference could be made that their cessation of circulation was irreversible and they were, in fact, dead.
If that is the case I would quibble whether that was in fact the creation of a ‘legal power to declare patients dead’. It may be overly pedantic, but I would note that no law says that paramedics can declare a patient dead and they cannot do so for the purposes of either the Births, Deaths and Marriages Registration Act 1996 (Vic), the Coroners Act 2008 (Vic) or the Human Tissue Act 1982 (Vic). If, as I infer, paramedics can terminate treatment that is not efficacious with the conclusion that the patient is dead, that is a power we all have (we don’t have to try to save the obviously deceased) so the protocols rightly give paramedics guidance on when to terminate treatment in those cases where death is not obvious.
As I say this may be overly pedantic, but it was my view that the report as expressed in The Age was at least misleading, if not wrong, and in the interests of trying to make the law clear, I have set out my understanding. I would be interested in hearing from any Victorian Paramedics if they have another view on what may have been meant in Ms Stark’s article.
Michael Eburn
26 April 2012.
Australian Emergency Law 
Hi Michael – thanks for a very clear clarification on this. At the risk of taking you off on a tangent here, I have a question – it is in response to a recent US judgement where a person with Do Not Revive tattoed on their chest was deemend to have give given a clear direction that they should not be given CPR or revived. Can you give any guidance where the law would stand on this in Australia and what the ramifications might be for an ambulance or other medical first responder? Thank you Sue Pigdon
Sue, thanks for your comments. In the issue of CPR tattoos you may like to look at my earlier post ‘Medical tattoos offer important health information’.
Michael Eburn.
Really interesting article and I think a very valid, non-pedantic point.
What seems to be underlying this mis-apprehension is that life and death are always clearly and unequivocally demarcated. Though mist systems, including the legal system, operate on the basis that there are clear categories and dichotomies, this is not always true. Even under the legal definition, whether cessation is ‘irreversible’ may depend very much on circumstances eg a person whose heart stops beating in a hospital might be revived v a person at the scene of a catastrophic accident where there are no doctors or equipment and limited triage may not.
The idea was verification of death. Not certification of death.
This ‘Guidance’ came from DoH Victorian after a review of the Coroners Act.
Click to access Feb-2011-Guidance-Note-for-the-Verification-of-Death.pdf
Dear Brent and Z.Riding, thanks very much for those links. They confirm the point that paramedics can verify that someone is dead, as the Department of Health document says ‘registered nurses, midwives and paramedics can ‘verify death’ as the law does not prevent them from undertaking this activity. Registered nurses, midwives and paramedics have always been able to ‘verify death’. However, it is apparent that the Department of Health needs to reinforce this’.
The law, referred to in the original post, relating to the certification of the cause of death, rather than the fact of death except where it is intended to take organs from a person who is dead but whose circulation or respiration is being artificially maintained. The Ambulance and the DoH document give effect to the law. The Human Tissue Act defines death and these documents give effect to that law by directing paramedics and other allied health professional to the clinical indicators that this has occurred.
My original post was not making comment on the actions of the paramedics in this case, like the others here I wasn’t there and don’t know what clinical or access issues they faced. My concern was with the journalists comment that this situation may have been contributed to by ‘Changes brought in in 2009 [giving] … paramedics … legal power to declare patients dead’. The DoH document is dated April 2009 so that is presumably the document the journalist was referring to but as it makes clear it in no way reflected a change in the law, just some direction on applying the law. Whilst it may not be important to most readers of The Age, because as this discussion has shown, paramedics can and do verify death, I think it is important for paramedics to understand the actual law as it applies to them.
Thank you everyone for your contributions and I look forward to the ongoing discussion.
Michael
The relevent pages from the Ambulance Victoria Clinical Practice Guidelines are pp 26-28. It can be downloaded from http://www.ambulance.vic.gov.au/Media/docs/x01_CPG_ADULT-web-835ff459-ac3e-454e-880b-0fac0c92c212-0.pdf
In England, paramedics will make a “recognition of life extinct” or ROLE. We don’t declare people dead.. a doctor or coroner will do that. To “ROLE” someone, there are criteria that must be met and documented (including, in most instances, an ECG, which would have prevented what occurred here). This can be done on arrival or after an unsuccessful resuscitation attempt. I assume Victorian Ambulance would have a similar system.
Evan
Another correspondent has referred me to a page detailing the Department of Health’s Guideline on Verification of Death. That page, at http://www.health.vic.gov.au/nursing/verification-of-death-by-nurses-and-paramedics, gives some interesting historical context. It says:
“In September 2006, the Victorian Parliamentary Law Reform Committee (VLRC) released its Final Report on the Coroners Act 1985. Recommendation 1 of the report pertained to the verification of death and was:
“That legislation be enacted which requires a doctor, nurse, paramedic or other suitably qualified person to provide a certificate which verifies the fact that a person has died. Such certification must only occur following a clinical assessment of the body (which would include an examination of the body) to establish that death has occurred and must include information in the certificate which details the circumstances of death including a record of any injuries observed on the body and any information about the death which should be referred to the coroner.”
… In 2008 DHS determined that it was unnecessary to enact legislation to require nurses and paramedics to verify death, as the law does not prevent these professionals from undertaking this role and they are educated to a standard to be able to do so.”
Again confirming that there was no change in the law in 2009 (as reported in The Age).
Regards
Michael.
Hi Michael,
I know this is a very old post but I came across it while looking for some old information on exactly this topic. My recollection is that this change came about, not because of any change in law, but because the Department had misinterpreted the law.
Prior to approximately 2009 many bodies of dead people from the community were brought to the local emergency department to be declared dead by a doctor. They were usually brought in to the back door by an undertaker or police, and a junior doctor sent out to state that they were deceased. Indeed, I was involved in a few of these!
My understanding (and this is going entirely off my memory) is that RDNS approached the Department of Health (presumably) because this system was causing unnecessary strain on patients and providers. They requested their nurses be given authority to declare a person dead. When the lawyers looked into making this change, it turned out that there was never any law specifying who could declare a person deceased. And so overnight nurses and paramedics obtained they power to declare death!
This is my recollection, and I actually stumbled on this page trying to find a source to confirm this! If I find an original source I’ll post it here.